Kruger and Zaio

[2009] FamCA 1218

FAMILY COURT OF AUSTRALIA

KRUGER & ZAIO [2009] FamCA 1218

FAMILY LAW – PRACTICE AND PROCEDURE – Discovery – Court documents referred to the Commissioner of Taxation

APPLICANT: Ms Kruger

RESPONDENT: Mr Zaio

FILE NUMBER: MLC 6106 of 2008

DATE DELIVERED: 3 December 2009

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Mushin J

HEARING DATE: 3 December 2009

REPRESENTATION

COUNSEL FOR THE APPLICANT: Ms Stewart

SOLICITOR FOR THE APPLICANT: Richard Calley Family Lawyers Pty

COUNSEL FOR THE RESPONDENT: Mr Weil

SOLICITOR FOR THE RESPONDENT: Victor Tse & Associates

Orders

1. That as soon as practicable the Registry Manager of the Melbourne Registry of the Court cause the following documents to be forwarded to the Commissioner of Taxation for the Commonwealth of Australia:

   a.a sealed copy of this order;

   b.a certified copy of the reasons for judgment delivered this day;

   c.sealed copies of the affidavits of evidence-in-chief and Financial Statements of each of the husband and the wife in these proceedings; and

   d.sealed copies of any other document which may be reasonably requested by the said Commissioner.

2. The said Commissioner be and is hereby requested to give consideration to whether the husband and the wife or either of them have complied with all relevant law with respect to the taxation of income and other like matters and take whatever action thereon as he may consider appropriate.

3. The further hearing of these applications be otherwise adjourned to the Docketed Registrar for the holding of a Directions Hearing on a date to be advised after Easter 2010.

4. All questions of costs be reserved.

5. General liberty be reserved to both parties to apply.

IT IS CERTIFIED

1. Pursuant to Rule 19.50 of the Family Law Rules 2004 this matter reasonably required the attendance of counsel.

IT IS NOTED that publication of this judgment under the pseudonym Kruger & Zaio is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth)

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLC 6106 of 2008

MS KRUGER

Applicant

And

MR ZAIO

Respondent

REASONS FOR JUDGMENT

1. At the request of counsel, and with the agreement of their clients, I met with counsel in chambers.  This is clearly not a case which can be contained within two or three days, as was quoted at the original mentions of these matters. 

2. While in chambers with counsel I raised a problem which I see as being fundamentally important.  Upon reading the relevant documents in this matter yesterday, it occurred to me that I was going to have difficulty in doing justice and equity to the parties in accordance with the requirement of the statute because it seemed to me that the tax records of the parties were less than complete. 

3. At the beginning of the sitting today, when the case was called on, I asked counsel to provide me with copies of the relevant tax records and I was assured by counsel that that with which I have been provided is all that they have.  The documents themselves appear to me to be quite inadequate.  There is no tax returns in respect of several of the relevant tax years and on a first inspection it would appear that there may be a lack of correlation between the documents which I have been given and the parties’ sworn financial statements in these proceedings. 

4. In those circumstances in the event that there is a significant disparity in the tax situation it may well be that the asset position, as represented by the parties, is not accurate and that there may be a significant tax liability which at this stage is unstated. In those circumstances I take in to account the judgment of Lindenmeyer J in P & P (Tax Evasion) (1985) FLC 91-605 and which states the duty and responsibility of the court to protect the revenue. In my view, the situation with the parties’ disclosure is far from satisfactory and I therefore feel unable to go on with these proceedings.

5. In those circumstances I have decided that the proceedings will be adjourned and I will require the parties to ensure that they file all relevant tax returns.  I will cause a copy of these reasons, together with a copy of the order which I will make and the parties’ affidavits of evidence-in-chief and Financial Statements, to be forwarded to the Commissioner of Taxation of the Commonwealth of Australia and invite him to take whatever steps he sees as being fit.

6. Upon completion of that process the proceedings will resume before me.  To that end I will require a mention to be made of the proceedings after Easter 2010.  In those circumstances the proceedings will be adjourned.

I certify that the preceding six (6) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Mushin

Associate: 

Date:  11 December 2009