Lahiri & Saha
[2021] FamCA 639
•31 August 2021
FAMILY COURT OF AUSTRALIA
Lahiri & Saha [2021] FamCA 639
File number(s): BRC 8518 of 2020 Judgment of: BAUMANN J Date of judgment: 31 August 2021 Catchwords: FAMILY LAW – PROPERTY – Where the Trustee in Bankruptcy sought to strike out orders sought by the wife in her Response to an Application in a Case – Where a separate Court has determined bankruptcy matters raised by this wife in this Court – Orders made that part of the wife’s Response to an Application in a Case be struck out or otherwise dismissed. Legislation: Bankruptcy Act 1966 (Cth) ss 58, 120, 139ZR, 139ZQ
Family Law Act 1975 (Cth) ss 79, 102NA
Family Law Rules 2004 (Cth) rr 1.04, 1.12, 5.01
Cases cited: [2018] FCCA 1738
[2018] FCCA 3760
[2020] FCCA 2125
Number of paragraphs: 21 Date of last submission/s: 14 June 2021 Date of hearing: 8 June 2021 Place: Brisbane Applicant: The Applicant appeared in person First Respondent: The Respondent appeared in person Solicitor for the Second Respondent: Stacks Law Firm ORDERS
BRC 8518 of 2020 BETWEEN: MR LAHIRI
Applicant
AND: MS SAHA
First Respondent
MR FELTOS
Second Respondent
ORDER MADE BY:
BAUMANN J
DATE OF ORDER:
31 AUGUST 2021
THE COURT ORDERS UNTIL FURTHER ORDER:
1.That orders 2, 4, 5, 6, 7, 8, 9, 10, 11, 12, 13, 14, 15, 16, 19, 33, 34, 35, 41 and 52 of the wife’s Response to an Application in a Case filed 24 March 2021, be struck out or otherwise dismissed.
2.That orders 3, 18, 20, 21, 22, 23, 24, 25, 26, 27, 28, 29, 30, 31, 36, 37, 38, 39, 40, 42, 43, 44, 45, 46, 47, 48, 49, 50, 51 and 53 of the wife’s Response to an Application in a Case filed 24 March 2021, be adjourned to a date to be fixed in the Family Court of Australia in Brisbane.
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 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to 17.02 Family Law Rules 2004 (Cth).
IT IS NOTED that publication of this judgment by this Court under the pseudonym Lahiri & Saha has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
BAUMANN J:
In contested property settlement proceedings commenced by the husband in July 2020, he not only joined the wife as a Respondent, but also joined the wife’s Trustee in Bankruptcy.
The wife was the subject of a sequestration order made by a Judge of the Federal Circuit Court of Australia on 30 September 2016. For reasons not necessary to detail in these Reasons, the wife’s bankruptcy did not end by effluxion of time, but has been extended. She remains at this time, an undischarged bankrupt.
The affidavit of the Trustee, Mr Feltos, filed 18 May 2021, provides full details of a history of the proceedings in the Federal Circuit Court of Australia, Federal Court of Australia and High Court of Australia since the sequestration order was made on 30 September 2016.
A critical issue in the marital property dispute (but by no means the only issue) is the effect of two transactions relating to a property located at B Street, Suburb C, New South Wales (“the Suburb C property”), namely:
(a)On 15 October 2014, the wife transferred a 1/100th interest in the Suburb C property to the husband, which was registered on 3 December 2014; and
(b)On 8 December 2014, after a discharge of mortgage had been registered over the Suburb C property, the title was unencumbered. On the same day, the wife transferred her remaining 99/100th in the Suburb C property to D Pty Ltd as Trustee of the D Pty Ltd Superannuation Fund.
Simply stated, if the transfer of the wife’s interest in the Suburb C property (noting that on 8 December 2014, the husband transferred his 1/100th interest in the property to the D Pty Ltd Superannuation Fund), did not form part of the bankrupt estate at sequestration, then it represents an interest amenable to a splitting order under the Family Law Act 1975 (Cth) (“the Act”).
The Trustee, in the notice issued pursuant to s 139ZQ of the Bankruptcy Act 1966 (Cth) (“the Bankruptcy Act”) dated 4 June 2020, claims that the transfers are void pursuant to s 120 of the Bankruptcy Act, and as a result, the D Pty Ltd Superannuation Fund is indebted to the bankrupt estate to the value of $853,875.
Both the husband and the wife oppose the relief sought and as a result, orders made on 2 June 2021 which ordered a discrete hearing in respect of only this aforementioned bankruptcy issue, is listed for hearing for two days commencing 16 September 2021.
On 24 March 2021, the wife filed a Response to an Application in a Case seeking, for the first time, to significantly expand the relief and orders sought under the Bankruptcy Act. As earlier noted, the wife is no stranger to the bankruptcy jurisdiction, and although she does not have the benefit of legal representation, she is both extremely articulate and literate as transcripts of interlocutory hearings will attest and her written submissions demonstrate.
Both parties are now unrepresented and although orders pursuant to s 102NA of the Act have been made, representation under the cross-examination scheme will be available for the property proceedings, but do not extend to the relief sought under the Bankruptcy Act.
On 24 March 2021, the wife filed a Response to an Application in a Case which I regarded as a Cross-Application for relief. The orders sought are articulated as follows:
1.Invoke the bankruptcy jurisdiction in these proceedings pursuant to section 79(1) of the Family Law Act
2.An order in the nature of an injunction, restraining the Applicant and 2nd defendant from dealing with, selling, or demanding payment of a share of any properties held in trust for D Pty Ltd Superannuation Fund, as listed in Annexure B to the Applicant's amended application, and all other assets listed in [1D] [2] of Annexure B to the Applicant's amended application and all other superannuation fund assets, exempt from a bankrupt's estate, pursuant to section 116(2) of the Bankruptcy Act
3.Join the 1st respondent and applicant's 16yo autistic son and 1st respondent's parents to the proceedings, whose interests are to be represented by the 1st respondent.
4.Set aside or vary the sequestration order of 30 September 2016 pursuant to rule 16.05 (2) (b), (e) or (3), or rule 16.01 of Federal Circuit Court Rules 2001
5.In the alternative to 4, set aside the sequestration order of 30 September 2016 on the basis of new evidence as to solvency as of the date of the order.
6.In the alternative to 4 and 5, Set aside the sequestration order of 30 September 2016 pursuant to rule 16.05 (2) (b), of Federal Circuit Court Rules 2001, Fraud
7.In the alternative to or in addition to 4, 5 and 6, Stay the sequestration order of 30 September 2016 pursuant to the BANKRUPTCY ACT 1966 - SECT 60 Stay of legal proceedings, or rule 13.09 of Federal Circuit Court Rules 2001, pending final determination of this application, and pending proof of debt as in [8], and pending final determination of NSW Supreme Court case 2013/238215 against petitioning creditor Mr E.
8.Order the trustee (2nd respondent) provides a list of all provable debt pursuant to the BANKRUPTCY ACT 1966 - SECT 82 Debts provable in bankruptcy, as of 30/9/16, 21/10/16, 4/6/20 and 25/3/21 to the applicant within 2 days.
9.Grant leave to subpoena proof of payment of costs by creditors Mr & Mrs E
10.Order that the trustee provides a statement of all funds seized and how they have been disbursed, with a trust account statement as of 25/3/21 listing all transactions since 30/9/16, and a copy of all reports to creditors, and full contact details including residential address email address and phone numbers of all creditors since 30 September 2016 to the 1st respondent within 2 days.
11.Order that the 2nd respondent pays all funds from sale of R Street Suburb S and its contents into the 1st respondent's superannuation fund, as well as compensation for under sale of the property to a related party.
12.Order that the 2nd respondent repays the 1st respondent and her parents for their loan to the 1st respondent secured against her house at R Street Suburb S NSW, with interest
13.Order that the 2nd respondent pays all funds from sale of 1 & 2 BB Street, Suburb CC Qld to the Applicant, as well as compensation for under sale of the property to a related party.
14.Order that the 2nd respondent pays all funds seized from debtors to the 1st respondent to the applicant, in the full sum as per the Court orders with interest since, including the debt written off by the trustee against petitioning creditor Mr E.
15.Order reversal of sale of all D Pty Ltd Superannuation Fund assets, including F Street Suburb G Qld, R Street Suburb S and H Street, J City, K State, USA and their contents and the Motor vehicle 1
16.In the alternative to (15), order that the applicant and 2nd respondent pay all funds from sale of F Street Suburb G Qld and H Street, J City, K State, USA and all other Superannuation fund properties and assets sold into the 1st respondent's superannuation fund, as well as compensation for under sale of the properties and assets to related parties.
17.Order that all notices and orders from AFSA obtained by the trustee (2nd respondent) since 30 September 2016, and the s139ZQ notice of 4 June 2020 be set aside.
18.Order that the applicant pays the 1st respondent replacement value of the stolen motor vehicle 1, motor vehicle 2 and motor vehicle 3 within 2 days.
19.Order that the applicant and 2nd respondent pay funds seized from superannuation fund accounts and sale of superannuation fund assets to the superannuation fund, at replacement value with interest and Company and trust accounts back to those accounts and that these funds are not to be seized by the trustee.
20.Order that the applicant pays his son funds stolen from his bitcoin, independent reserve and related investments and bank accounts that were held in trust for Mr L in the name of the applicant, paid for by the 1st respondent's father. The funds are to be paid into an account in the name of Mr L, including interest and compensation for loss of profit by early sale.
21.Grant leave to subpoena the applicant's psychiatric report from Dr T of V Hospital
22.Order an independent forensic psychiatrist assessment and report to Court of the Applicant, the psychiatrist is NOT to be selected by the Applicant’s lawyers, and must communicate with the first respondent to obtain a history of the applicant’s mental problems
23.Order the Applicant to disclose to the 1st respondent what dates he occupied her superannuation fund house at F Street Suburb G Qld, the full name and contact details of the woman who occupied the house with him and on what dates, and order the Applicant and his adulterous mistress to pay rent of $1500 per week to the 1st respondent for the entire period they occupied her house, half to be paid by the mistress (with proof)
24.Order the Applicant to disclose to the 1st respondent what money, jewellery, his wife’s jewellery and gemstones, gifts and assets he has given to his adulterous mistress, or spent on her including rent, meals, vacations, car expenses with proof within 2 days of the order.
25.Order the Applicant to provide the 1st respondent a copy of his registered will within 2 days of the order.
26.Order that the applicant pays all funds seized from sale of W Street Suburb X NSW as well as compensation for under sale of the property into an account in the name of his son Mr L, and that these funds are not to be seized by the trustee.
27.Declaration pursuant to section 78(1) and (2) of the Family Law Act 1975 (Cth) that the properties at B Street Suburb C NSW and R Street Suburb S NSW were held in trust by the applicant and 1st respondent for the D Pty Ltd Superannuation Fund
28.Declaration pursuant to section 78(1) and (2) of the Family Law Act 1975 (Cth) that all sale of D Pty Ltd Superannuation Fund properties and assets since 30 September 2016 are invalid, NULL and VOID, and order reversal of the sales
29.An order in the nature of an injunction restraining the applicant from transferring any funds overseas, especially to India and reverse any transfer of funds overseas or to any third parties and sale of assets by the applicant since 1 January 2012.
30.Grant leave to subpoena Y Company, Z Company and other carriers for evidence of criminal hacking by "hacker" petitioning creditor Mr E into my accounts and all of my contacts accounts, especially my father’s modem and email accounts
31.Grant leave to subpoena all of the Applicant’s bank account and credit card statements since 1 October 2000.
32.Grant leave to subpoena all of the Applicant’s phone, text and email records since 1 January 2017.
33.Order that the trustee's costs be sent for independent assessment with input from the 1st respondent.
34.Order that the trustee be replaced by a trustee nominated by the 1st respondent forthwith.
35.Reverse all transfer of funds from the 2nd respondent’s trust account, and transfer all funds from his trust account to the new trustee
36.Grant leave to subpoena accountant Mr M of N Accounting for all financial records for me, Mr Lahiri, D Pty Ltd , D Pty Ltd Superannuation Fund, AA Family Trust, P Trust and all entities managed by him for me, Mr Lahiri and all our entities as well as my financial position statement as of 8 December 2014, and as of now, all financial statements required for this application and a copy of all communications from the applicant and the 2nd respondent or his agents to the accountant since 30 September 2016
37.Extend time to make the 1st respondent's self-managed superannuation fund compliant and regulated as a regulated fund until now
38.An order in the nature of an injunction stopping the dissipation or distribution of funds and sale of assets of the D Pty Ltd Superannuation Fund
39.An order that the Applicant, Mr Lahiri, gives me free access to the superannuation records and correspondence, including all correspondence with third parties such as the ATO and trustee of my bankrupt estate.
40.An order that the Applicant, Mr Lahiri, be ordered to account to me for any funds or assets of my superannuation fund received by him in his individual capacity since 5 November 2000 within 2 days of the order.
41.An order that the second Respondent, the trustee of my bankrupt estate, be ordered to account to me for any funds or assets of my superannuation fund received by him within 2 days of the order .
42. An order that a property settlement occur between me and the Applicant, Mr Lahiri, pursuant to Section 79 of the Family Law Act to include the Superannuation Fund.
43.An order that an independent manager be appointed to preserve and administer the D Pty Ltd Superannuation Fund according to the law until these matters are resolved.
44.An order removing the Applicant, Mr Lahiri, as director and trustee of D Pty Ltd and its Superannuation Fund and all financial entities of mine and restraining him from dealing with the ATO, dealing with or selling any assets held by these entities.
45.Declaration that the Applicant, Mr Lahiri, lacks and has lacked all mental capacity to make any financial decisions or deal with the second Respondent, my trustee in bankruptcy, since 1 February 2019, so his consent to sell jointly owned assets was invalid, NULL and VOID
46.A freezing order for the assets and proceeds of the sale of assets of the superannuation fund
47.An order to seize the Applicant, Mr Lahiri’s passport
48. An order that the applicant pays maintenance to the 1st respondent quantified as half of all of his income since 21 February 2019, including Centrelink, wages, interest from bank accounts and pension from the 1st respondent’s superannuation fund pursuant to section 74(1) and (2) of the Family Law Act 1975 (Cth) and that this payment is NOT to be seized by the trustee in bankruptcy
49. Grant leave to amend this response to application
50.An order to stop all pension payments to the Applicant from the 1st respondent’s superannuation fund forthwith
51.An order that the applicant pays me all funds paid to the D Pty Ltd Westpac Bank Account by Q Company to replace and repair white goods and damages to B Street Suburb C NSW by EFT by 3pm on 25 March 2021
52.An order that the trustee in bankruptcy pays me my living expenses of $1500 per week since 30 September 2016 until 25 March 2021 by EFT by 3pm on 25 March 2021
53.Costs for this application on a lump sum basis against the applicant and 2nd respondent to be paid by EFT by 3pm on 25 March 2021
(per original)
It is regrettably a feature of these proceedings that the unrepresented wife often leaves the filing of applications or written submissions until the last moment, as with the said Response and Cross-Application, which was filed the day before a scheduled Case Management Hearing (“CMH”) on 25 March 2021.
On 25 March 2021, the Trustee for Bankruptcy made an oral application to strike out most of the wife’s Response, however the late filing of the Response required that oral application to be adjourned, so that the Court could consider how to proceed with the discrete bankruptcy issues in the midst of the substantive proceedings that were listed for trial in October 2021. Ultimately, those trial dates have been vacated as a result of the listing for a discrete hearing relating to the bankruptcy dispute.
On 7 April 2021 and again on 10 May 2021, further CMH’s were conducted and made more difficult by the need for them to be conducted electronic means, and where the wife informed the Court she was engaged in other litigation which was occupying her available time. Nonetheless, the following further submissions have been filed and considered in respect of the strike out application, namely:
(a)the Trustee’s Written Submissions filed 20 May 2021;
(b)the Trustee’s affidavit filed 18 May 2021;
(c)the wife’s Written Submissions filed 11 June 2021;
(d)the husband’s affidavit filed 7 July 2021; and
(e)the Trustee’s Written Submissions in Response filed 14 June 2021.
Although the husband’s affidavit gives evidence about the alleged solvency of the wife at 30 September 2016 and asserts, inter alia, abuse of power by the Official Receiver’s delegate, for the purpose of the strike out application, the husband at paragraph 4 of his affidavit filed 7 July 2021, states that he “supports in full” the wife’s written submissions filed 11 June 2021.
DISCUSSION:
On the material relied upon, I find as follows:
(a)Leave was given by the Court for the Second Respondent Trustee to make an oral application. To the extent the wife says r 5.01 of the Family Law Rules 2004 (Cth) (“the Rules”) requires a formal, written Application in a Case, in the circumstances of this case – proceeding with the oral application and considering same by written submissions, reflected the power under r 1.12 of the Rules, where the Court of its own initiative, may dispense with the need for a formal, written Application in a Case. This was appropriate considering the main purpose of the Rules is to ensure the case is resolved in a just and timely manner (r 1.04 of the Rules) and the consideration of the administration of justice, which includes that the wife’s bankrupt estate is administered appropriately and according to law;
(b)In circumstances where the Trustee has provided an undertaking on 7 August 2020 to this Court, from dealing with or selling the Suburb C property, or enforce any change over the property created under s 139ZR(3) of the Bankruptcy Act, the injunction sought at Order 2 of the wife’s Response to an Application in a Case is unnecessary;
(c)The Trustee’s submissions at paragraphs 5 to 11, detail how Orders 4, 5, 6, 7, 8, 9 and 10 sought by the wife have been determined previously by the Federal Circuit Court of Australia. The submissions identified the judgments delivered by his Honour Judge Manousaridis ([2018] FCCA 1738; [2018] FCCA 3760; [2020] FCCA 2125) on these issues. In response to the Trustee’s submission, the wife says:
The second respondent continues to mislead the Court by falsely alleging the orders I seek against him have already been determined by the Federal Circuit Court. They have not, as I have repeatedly stated, all of my applications were dismissed ex parte with only me present, without any hearing and without any determination of the issues at a “leave only”, interlocutory stage…
(d)I am satisfied the Federal Circuit Court of Australia has determined the issues raised again in this Court at Orders sought 5, 6, 7, 8, 9, and 10. It is appropriate to note that the Federal Circuit Court of Australia has exercised its jurisdiction under the Bankruptcy Act, and where decisions have been made in the past against applications made by the wife, she had appeal rights available. There is no evidence that when she chose to appeal, that she has been successful. The reasons set out at [12] to [15] in … (supra), whereby the wife required leave before filing further applications, provided as follows:
12.I will say something very briefly about the affidavit referred to in that email. Various allegations are made in it. These are that fraudulent evidence was presented before me at the time I made the sequestration order and fraudulent evidence was provided before Farrell J on the hearing of the appeal. It also contains assertions in relation to the conduct of the trustee in bankruptcy of Ms Saha’s estate. This includes allegations of providing false sworn evidence, illegally obtaining a garnishee order, the making of false and malicious complaints to the inspector general to seek fraudulent criminal charges against Ms Saha, repeated refusal to settle, collusion with creditors, and the failure to provide any evidence of provable debts. The mere statement of what is asserted in the affidavit should reveal why I formed concerns about whether Ms Saha should be permitted to proceed on the application based on those allegations.
13.At the hearing before me today Mr Carter, who appears on behalf of Ms Saha, made some submissions. After an exchange between me and Mr Carter, I adjourned the matter to permit Mr Carter to obtain further instructions from Ms Saha. When I came back on the bench, Mr Carter informed me that he had instructions that Ms Saha did not wish to move on the application as it was currently formulated and on the affidavit on which she intended to rely.
14.In those circumstances, I indicated to Mr Carter that what has so far occurred should be formalised in some sort of way, and that the manner in which I believe the matter should be formalised is by me making an order granting Ms Saha leave to file the application returnable instanter and for me to dismiss it and also to make an order that Ms Saha is to file no further application in this proceeding without first obtaining the leave of the Court which in practical matters means my leave being the judge to whom this matter has been docketed.
15.In my view, this is a fair way of dealing with the matter. Ms Saha will not be deprived of any reasonable cause of action she may have; and also as importantly other parties will not be troubled by having to deal with an application which may have no reasonable prospects of success or worse, be an abuse of process. In those circumstances, therefore, I propose to make the orders I have indicated I would make.
The wife did not appeal the orders made 3 April 2018;
(e)It is simply an abuse of power to try again to bring those same proceedings to the Family Court of Australia for determination;
(f)Order 11 seeks funds received by the bankrupt estate from a sale of the Bankrupt’s half share in the property located at R Street, Suburb S, New South Wales (“the Suburb S property”) be paid to the wife’s Superannuation Fund “as well as compensation for under sale of the property to a related party.” Although I accept the wife raises many complaints about her sequestration and its extension, the wife’s interest in the Suburb S property vested in the Trustee pursuant to s 58 of the Bankruptcy Act. As I will refer to later in these reasons, the Family Court of Australia has not assumed jurisdiction in every bankruptcy issue between the wife (and for that matter, also the husband) and the Trustee. The issue for discrete determination has been identified and directly impacts on the obligation of this Court to make orders under the Family Law Act (1975), between the husband and wife.
(g)Orders 12, 13, 14, 15, and 16 are the subject of submissions by the Trustee at paragraphs [16] to [26] and clearly relate to complaints by the wife (and apparently supported by the husband) about the administration of the bankrupt estate. This Court has not accepted jurisdiction under the Bankruptcy Act to determine every dispute between the wife and the Trustee. If she has remedies against the Trustee, she may elect to pursue them elsewhere. This Court is seized of a discrete dispute, already identified and ready for hearing;
(h)To the extent that the wife seeks to canvas these issues in this Court, when jurisdiction may be elsewhere, seems to be motivated by a deep sense of frustration or unfairness, encapsulated by her submissions at [21]:
21.The forced bankruptcy of a clearly solvent person, keeping her bankrupt by false statements to Court, and extension of her bankruptcy period by another 5 years with intent to keep her bankrupt indefinitely as the trustee has conveyed to Mr Lahiri, for the wrongful motive and collateral purpose of serial theft of her multiple unencumbered properties, while he has deprived her of all access to any funds at all and left her no money to live on, fits the definition of “abuse of process” as in “Ashby” in [19] above
(i)The wife’s concerns about fees charged by the Trustee (and his conduct generally) are succinctly set out at [27] as follows:
27.The trustee’s brief assertions in his submissions of 20 May 2021 are deliberately false, and do not answer or address the evidence in my previous affidavits served on him, in particular that my entire share of the property at R Street Suburb S was secured against a mortgage to my parents. Disputed evidence is a matter to be heard at trial, and not summarily dismissed without a hearing. The Court has already fixed a two day trial on 16 and 17 September, and no prejudice has been shown by the trustee in waiting until the hearing, in circumstances where he has already paid himself, the petitioning creditor who appointed him and their same (common) lawyer nearly $ 550 000.00 from his trust account (Annexure “M”, page 163 of trustee’s affidavit of 18 May 2021 lists $192 630 35.00 paid to himself, the trustee, $175 612.15 paid to the petitioning creditor, and $110 883.87 paid to their common lawyer in fine print without dates paid or names paid to) without any assessed costs, and without signed consent of the other creditors, myself or Mr Lahiri while there were orders pending against him to pay back those funds wrongfully seized by him. The prejudice is to me, in being forced into bankruptcy and being left derelict, with NO access to funds
Just because the Family Court of Australia is a Court, does not mean, as presumably oral submissions by the wife suggest, it should determine these issues when other Courts have, she says, not done so to her satisfaction. Forum shopping is not appropriate.
(j)In the Trustee’s submissions in Response, at paragraphs [23] to [26] that:
23.Ms Saha’s position seems to be that because a final contested hearing did not occur in the Federal Circuit Court, her applications were not determined. This is obviously wrong, and ignores the inconvenient truth that the reason why final contested hearings did not occur is because the Federal Circuit Court, on three separate occasions, determined that her applications could not proceed to final contested hearings because they:
(a) had no reasonable prospects of success;
(b)were bound to be summarily dismissed if they were allowed to proceed; and
(c) would be an abuse of process of the Court.
24.The bulk of Ms Saha’s submissions are accordingly misconceived. They cite largely irrelevant authorities and rules, and are misdirected at satisfying irrelevant legal tests. For example:
(a)it is not true, as asserted by Ms Saha at [5] of her submissions, that Federal Circuit Court case SYG 235/2015 was ‘closed’ in the Federal Circuit Court to allow this Court to determine the issues raised in her Response. Annexed and marked “A” is a copy of an email dated 7 August 2020 from the Registry which confirms that Federal Circuit Court case SYG 235/2015 was closed because it was finalised on 4 August 2020 with judgment being delivered by Judge Manousaridis. It is a gross misrepresentation to assert that an administrative act by the court has the legal effect contended by Ms Saha;
(b)there is no relevant error, or relevant judgment, identified in [9] of the submissions;
(c)Ms Saha’s incorrectly attributes her bankruptcy to the Trustee at [21], as opposed to the petitioning creditor;
(d)the Trustee is not required to establish any abuse of process (as contended at [22] of the submissions) to succeed on the present application; and
(e)there is incontrovertible evidence (in the Trustees affidavit affirmed 18 May 2021) that the property at R Street, Suburb S was sold pursuant to orders of the Supreme Court of NSW, contrary to [24] of the submissions.
25.Ms Saha refers at [27] to evidence in unidentified affidavits being relevant to this application. Ms Saha failed to identify any evidence in any affidavit that supports her submissions. The Trustee notes that Ms Saha was required to serve any further evidence on which she relied in respect of this application by order 3 of the orders made by this Court on 10 May 2021.
26.Ms Saha incorrectly states at [27] of her submissions that the Trustee’s fees were paid without consent of the creditors of her bankrupt estate. The Trustee’s fees have been approved by creditors.
I agree with the force of those submissions.
(k)Order 19 seeks an order that:
19.Order that the applicant and 2nd respondent pay funds seized from superannuation fund accounts and sale of superannuation fund assets to the superannuation fund, at replacement value with interest and Company and trust accounts back to those accounts and that these funds are not to be seized by the trustee.
There is no evidence that the Trustee has “seized” funds from the wife’s Superannuation Fund. It may be that the wife complains (as Order 19 suggests) that the husband has seized funds, but that issue can be sensibly ventilated during the future proceedings under s 79 of the Family Law Act (1975). As against the Trustee, that relief is doomed to fail.
(l)A similar complaint is articulated within Order 41, namely that the Trustee “be ordered to account to me for any funds or assets of my superannuation fund received by him within 2 days of the order.” To the extent this relates to the administration of her bankrupt estate, I rely upon the finding made earlier in these Reasons. It does seem clear, to some degree, that the wife is not entirely certain who her target for recovery should be, because she seeks relief against the husband “to account to me for any funds or assets of my Superannuation Fund received by him...since 5 November 2000” (Order 40).
CONCLUSION
The interests of justice and the need for the dispute between the husband and wife under the Family Law Act to be dealt with efficiently and in a timely way, is facilitated by the discrete hearing listed to proceed, proceedings on the issues already identified.
I will Order, for the Reasons given, that the Application for orders set out at 2, 4, 5, 6, 7, 8, 9, 10, 11, 12, 13, 14, 15, 16, 19, 33, 34, 35, 41 and 52 of the Response to an Application in a Case filed 24 March 2021 be struck out or otherwise dismissed.
It is the Court’s intention to proceed with the discrete hearing set to commence on 16 September 2021.
After the issues at that discrete hearing are determined, the substantive property proceedings between the Applicant husband and Respondent wife, will be able to be determined. Hopefully, the discrete hearing will achieve the intention of further narrowing the issues in dispute, clarifying the legal and equitable property interests and liabilities of the parties.
As earlier noted, the effect of the application of s 102NA of the Act, will be that for the substantive proceedings, each party will have the opportunity to retain a publically funded legal practitioner.
Considering the other relief sought by the wife in her Response to an Application in a Case (for example at Order 3, she seeks to join the parties’ 16 year old autistic son in the proceedings), it is my view that resources are best utilised by the Court if those remaining matters are adjourned to a date to be fixed, after the discrete hearing determines those issues, at which future date the parties’ lawyers can address the Court on proposed orders 3, 18, 20, 21, 22, 23, 24, 25, 26, 27, 28, 29, 30, 31, 36, 37, 38, 39, 40, 42, 43, 44, 45, 46, 47, 48, 49, 50, 51 and 53.
I certify that the preceding twenty-one (21) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Baumann. Associate:
Dated: 31 August 2021
3
3