MURRAY & MURRAY
[2019] FamCA 737
•11 October 2019
FAMILY COURT OF AUSTRALIA
| MURRAY & MURRAY | [2019] FamCA 737 |
| FAMILY LAW – PROPERTY – Application to re-open – Where the wife seeks to re-open final property proceedings after judgment has been reserved – Where the wife seeks to adduce further evidence and have the opportunity to obtain additional evidence to tender in the property settlement hearing – Where the possible new evidence is so material that the interests of justice may require its admission – Where, if accepted, the possible new evidence would most probably affect the result and could not by reasonable diligence have been discovered earlier - Where any prejudice or embarrassment that the husband might suffer by reason of the possible new evidence being admitted is not a weighty consideration given the nature of the evidence – Where the wife is granted conditional leave to be able to obtain further evidence and for that purpose orders are made which attempt to confine and expedite the finalisation of the hearing |
| Family Law Act 1975 (Cth) |
| Black & Kellner (1992) FLC 92-287 Reid v Brett [2005] VSC 18 Weir and Weir (1993) FLC 92-338 |
| APPLICANT: | Ms Murray |
| RESPONDENT: | Mr Murray |
| FILE NUMBER: | SYC | 5665 | of | 2014 |
| DATE DELIVERED: | 11 October 2019 |
| PLACE DELIVERED: | Sydney |
| PLACE HEARD: | Sydney |
| JUDGMENT OF: | Watts J |
| HEARING DATE: | 30 September 2019; 11 October 2019 |
REPRESENTATION
| SOLICITOR FOR THE APPLICANT: | Litigant in person |
| SOLICITOR FOR THE RESPONDENT: | Litigant in person |
Orders
At 10 am on Monday 28 October 2019, Mr R attend the Family Court of Australia, 97-99 Goulburn St, Sydney 2000, Court …, to give evidence and produce any documents he retains in his control relevant to the cash deposits made by him on behalf of the husband including a copy of any statement, answers or information he provided to the Police or any investigation related to those deposits;
On or before Monday 21 October 2019, the Australian Federal Police and the NSW Police Force produce to the Court:
2.1 A copy of any statement made by Mr R relevant to cash deposits of almost $1 million made by him in amounts of less than $10,000 at bank branches in NSW, Victoria and Queensland during 2016; and
2.2 Any other document relating to the cash deposits by Mr R referred to in 2.1
which is in their possession or control.
The Australia Federal Police and the NSW Police Force have leave to approach my Associate as a matter of urgency for a listing in the event that they seek to claim privilege in relation to the document referred to in Order 2;
The wife be responsible for compensating the Australian Federal Police (or if relevant, the NSW Police Force) for any costs incurred by them for producing the document pursuant to these orders;
The Registrar is requested to urgently obtain a transcript of Mr R’s evidence on … 2019 during the criminal trial of …; and
The husband is to inform Mr R of the terms of Order 1 and to facilitate an arrangement where the wife can serve Mr R with a copy of that Order.
I reserve each parties’ costs for today.
I adjourn for mention the wife’s Application in a Case filed 2 September 2019.
Note: The form of the order is subject to the entry of the order in the Court’s records.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Murray & Murray has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
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 r 17.02 Family Law Rules 2004 (Cth).
| FAMILY COURT OF AUSTRALIA AT SYDNEY |
FILE NUMBER: SYC 5565 of 2014
| Ms Murray |
Applicant
And
| Mr Murray |
Respondent
EX TEMPORE REASONS FOR JUDGMENT
The final property proceedings were heard over seven days and judgment was reserved. The parties had been informed that final judgment has been written and the Court is in a position to deliver that judgment.
The wife has filed an Application in a Case on 23 September 2019 seeking leave to re-open the case and adduce further evidence.
The wife is not currently actually in possession of the evidence she wishes to lead. In order to be in that position, she seeks to issue subpoenas to the Australian Federal Police, the NSW Police Force and obtain a transcript of proceedings in a criminal trial. The wife also wishes to issue a subpoena to Mr R to give evidence in these proceedings.
Evidence during the hearing
During the hearing, the wife asserted that the husband had washed nearly $6 million in cash through bank accounts which he controlled. The husband, with the benefit of a s 128 certificate, admitted that he had been involved in money laundering but disputed that it involved an amount to the extent of $6 million. Further, the husband asserted that he had deposited large amounts of cash on behalf of clients into accounts that he controlled and that he received no benefit from that activity apart from keeping existing clients content.
At paragraph 32 of his second affidavit of 31 August 2018, the husband said that:
The transactions made in the … accounts were not related to activities of those companies under which the accounts were opened. Further I do not hold a beneficial interest in any of the bank accounts listed … nor did I receive any benefit from the funds that moved in and out of those accounts.
The husband also said that he didn’t know why it might have been that the majority of the multiple cash deposits made to ATMs into his account were in amounts of slightly less than $10,000.
The wife put into evidence a significant volume of banking records from accounts in the husband’s name or in entities controlled by him, including J Pty Ltd, the D Group and K2 Pty Ltd which she had obtained by way of subpoena, such documents not having been voluntarily provided by the husband to the wife.
J Pty Ltd and J2 Pty Ltd accounts
The wife asserts at paragraph 371 of her trial affidavit that between 25 January 2016 and 29 September 2016, deposits totalling $677,429.67 (and all but $5,000 by way of cash) were made into a CBA account in the name of J2 Pty Ltd.
Looking at those accounts, the deposits have been made at (See tab 107).
The Suburb T entry, which I infer maybe a Queensland branch, was a cash deposit of $9,450 dated 10 May 2016.
Money was then transferred out to other unknown CBA accounts.
Further, from 22 March 2014 to 5 December 2017, an NAB account in the name of J Pty Ltd recorded significant cash deposits. The NAB accounts do not record which locations the ATM cash deposits were made (see tab 110). The cash deposits in the wife’s reconciliation at tab 111 are in excess of $500,000. There are about 40 transactions. The majority of them are for slightly less than $10,000.
There was a further sum of $500,000 that went through the J Pty Ltd account on 4 July 2017.
All of this money was transferred out electronically and related to monies which the husband described as “under the subject of investigation”. The husband again conceded that it was at least substantially true that these cash deposits were associated with money laundering. He gave the name of Mr U as the person for whom he was laundering this money.
D Group accounts
The wife asserts at paragraph 402 of her trial affidavit that the various bank statements associated with the D Group record significant cash deposits and other transactions. She records at paragraph 405 that between 25 January 2016 and 29 September 2016, deposits were made into a CBA account held by D Pty Ltd (#...96) totalling $635,880; that $461,233.64 of that $635,880 was transferred to another CBA account in the name of D Pty Ltd (#...88); and that in total (including the $461,223 transferred between CBA accounts) $1,390,013.64 was deposited in CBA account #...88.
Tab 121 (account #...96) shows multiple cash deposits mostly under $10,000 made in 3 locations.
Tab 123 (account #...88) shows further, multiple cash deposits mostly under $10,000 made in 19 locations.
When looking at the two D Pty Ltd accounts (#...96 and #...88), the dates and locations of the cash deposits line up with the dates and locations of the cash deposits in the J Pty Ltd account at tab 107 (for example, the J2 Pty Ltd account at tab 107 and the D Pty Ltd account at tab 121 both show monies deposited at Sydney on the same date).
K Pty Ltd (later known as K2 Pty Ltd as at 2.09.14)
The wife asserts at paragraph 423 of her trial affidavit that upon issuing a subpoena to CBA she discovered two accounts under the name of K Pty Ltd/K2 Pty Ltd which recorded numerous transactions and significant cash deposits and withdrawals.
From 22 August 2014 to 23 May 2017, CBA account (#...93) under the name of K Pty Ltd/K2 Pty Ltd records multiple cash deposits, mostly under the amount of $10,000, at 26 locations.
The Town V deposit was dated 17 October 2016 and was an amount of $8,400.
The second CBA account (#...85), shows further, multiple cash deposits from 30 locations.
The Melbourne deposit was dated 10 May 2016 and was an amount of $9,800. The Town V deposit was dated 17 October 2016 and was an amount of $1,400.
The CBA removed banking services and new accounts were set up with ANZ. The wife did not have the statements for K2 Pty Ltd with the ANZ. The husband was unable to give any indication as to the magnitude of the amounts of money that he had moved from the CBA to the ANZ accounts.
Whilst the wife, during the final property proceedings, had put the three bank accounts for K2 Pty Ltd on the balance sheet (items 36 – 38), at the hearing it was clear that she wasn’t expecting to have any amount placed on the balance sheet for those accounts but rather simply that those items be placed on the balance sheet to draw attention to the fact that she did not know what, if any, interest the husband had in them.
There was further evidence of an amount of $100,000 deposited into an ANZ deposit account in December 2017. The husband, in his second affidavit at paragraph 33, discusses the removal of that $100,000 from that account in three tranches of $15,000, $25,000 and $60,000. He claims that that $100,000 was a gift from a client but then in a subsequent paragraph, asserts that those withdrawals were associated with the affair that was the subject of the police investigation. In his oral evidence, the husband denied that he was the person responsible for these transactions in the account of the Murray Family Trust, reiterating that “none were for myself or for my benefit”.
There was other evidence that the husband laundered money for persons connected with the company Y Company.
The new information upon which the wife relies
The wife puts into evidence in support of her application to re-open the case some information she discovered. A Mr R was called as a prosecution witness in a criminal trial. The information included details of cross examination regarding cash deposits made by Mr R allegedly on behalf of the husband.
The wife asserts that Mr R attended X High School with the husband and currently resides with the husband as a flat mate at his residence. The husband is an accountant by profession.
As earlier discussed, evidence of similar cash transactions (including a large number of amounts of less than $10,000) were deposited into accounts which the wife has been able to find by the use of subpoena.
Assuming the information discovered to be an accurate summary of the evidence given by Mr R, it is credible to believe that the school friend referred to by Mr R in his evidence, is the husband.
The husband has subsequently filed an affidavit on 8 October 2019 dealing with the assertions made by the wife. The husband concedes that Mr R is a friend of his and that he is indeed currently living with him in Suburb C and that Mr R and the husband attended school together at X High School. Notwithstanding the fact that they are living in the same residence together and that they are friends, the husband asserts that he is not in a position to verify whether or not Mr R gave evidence to the effect of what has been reported. The husband concedes that it is possible that Mr R made reference to him in connection with the deposit of certain amounts of money into different bank accounts whilst giving evidence in that criminal trial. I take it from that concession by the husband that Mr R had indeed been involved in depositing amounts of money into different bank accounts on his behalf.
The husband refers to paragraphs 30 to 32 of his second affidavit of 31 August 2018. The essential part of that evidence, at paragraph 32, is set out above.
The husband denies that he ever said to Mr R words to the effect that he was “trying to hide money from my wife”. The husband repudiates any suggestion that “it was his money” and denies that he has failed to disclose additional marital funds and says that his total assets and income have been fully disclosed in the proceedings.
The impression that the husband seeks to give is that whatever Mr R did was covered by evidence presented during the trial. However, the husband does not engage with the following matters arising from the information:
a)Whether he gave almost $1 million in cash to Mr R in two cooler bags and told him to deposit it into different bank accounts;
b)Whether the accounts into which Mr R deposited monies on behalf of the husband were in Mr R’s name or the name of the husband or an entity controlled by the husband; and
c)Whether or not there were accounts in bank branches in Victoria and Queensland other than the small amounts deposited at Suburb T, Melbourne and Town V that I have already referred to.
Legal principles
In Reid v Brett [2005] VSC 18 (8 February 2005) Habersberger J said:
2011. The criteria governing the exercise of the discretionary power to re-open a case to admit further evidence where the hearing has concluded but judgment has not been delivered have been said to be as follows:
(a)the further evidence is so material that the interests of justice require its admission;
(b)the further evidence, if accepted, would most probably affect the result of the case;
(c)the further evidence could not by reasonable diligence have been discovered earlier; and
(d)no prejudice would ensue to the other party by reason of the late admission of the further evidence.[1]
…
[1] Re: Australasian Meat Industry Employees’ Union (WA Branch); Ex parte Ferguson (1986) 67 ALR 491 at 493-494 per Toohey J, citing Watson v Metropolitan (Perth) Passenger Transport Trust [1965] WAR 88 and Murray v Figge (1974) ALR 612.
Is the evidence so material that the interest of justice require its admission?
At the trial, the wife relied upon the principles in Black & Kellner (1992) FLC 92-287 and Weir and Weir (1993) FLC 92-338. She could do nothing else given that she was unable to trace where monies, which had flowed through the husband’s accounts, had gone. Mr R has apparently given evidence that about $1 million was deposited by him into accounts. It is unclear whether or not these accounts are the same accounts that I have already had evidence about or are different accounts.
The monetary amount of $1 million is a significant amount if it is a different amount to that which has already been uncovered. The question arises as to whether or not it is in the interest of justice to allow the wife an opportunity to obtain the evidence that she is seeking so that it might be available, and if relevant, to tender in her case.
That material potentially could be relevant in the following way:
a)Although, on balance, unlikely, it potentially could disclose a new source of funds that might become available to the wife to place upon the balance sheet;
b)It might add to the evidence the wife relies upon going to the husband’s alleged lack of full and frank disclosure; and
c)Add to the evidence the wife relies upon going to the husband’s credibility.
I conclude that the potential evidence may well be so material that the interest of justice require it to at least be obtained.
If the further evidence accepted would it most probably affect the result of the case
Because it is not yet known what evidence the wife might wish to lead if leave was granted for her to obtain this evidence, it is difficult at this point to know whether or not, if the evidence was allowed, it would affect the result of the case.
If the wife’s final submissions were accepted, given the extent of the money laundering already asserted by the wife, the question arises as to whether or not another $1 million worth of money laundering will make a difference to the result if the new inquiries do not lead to the discovery of any further funds. In relation to the potential relevance referred to at [39(a)], it is likely it would only make a difference if the wife was able to uncover new funds which the husband held or were held on his behalf. In relation to the potential relevance referred to at [39(b) and (c)], the further evidence could well probably affect the result of the case.
Could the further evidence had been discovered earlier by reasonable diligence?
The answer to that question is obviously no. The husband had not disclosed the involvement of Mr R. The wife has only become aware of this further line of inquiry.
Would prejudice ensue to the husband by reason of the late admission of evidence?
I find that any prejudice or embarrassment occasioned to the husband as the result of a successful application to lead further evidence is not a weighty consideration given the nature of the evidence which the wife seeks to adduce. Although it needs to be acknowledged, the effect of the wife’s application is to increase delay and possibly stress on the husband, that is not a matter to which I give significant weight given the nature of what the wife seeks to put into evidence.
Ultimately, any financial prejudice which the husband might establish can be covered by an order for costs against the wife if that becomes appropriate.
Conclusion
Consequently, in order for the Court to do justice in the facts and circumstances of this particular case, the wife should be granted conditional leave to be able to obtain evidence for the possible tender in the property settlement hearing. I shall, however, make the orders that attempt to confine and expedite the obtaining of this extra evidence. With that intent, instead of granting leave to issue subpoenas I intend of my own motion to make orders which aim to expeditiously achieve the same outcome:
1.At 10 am on Monday 28 October 2019, Mr R attend the Family Court of Australia, 97-99 Goulburn St, Sydney 2000, Court …, to give evidence and produce any documents he retains in his control relevant to the cash deposits made by him on behalf of the husband including a copy of any statement, answers or information he provided to the Police or any investigation related to those deposits;
2.On or before Monday 21 October 2019, the Australian Federal Police (or if relevant, the NSW Police Force) produce to the Court a copy of any statement made by Mr R relevant to cash deposits of almost $1 million made by him in amounts of less than $10,000 at bank branches in NSW, Victoria and Queensland during 2016;
3.The Australia Federal Police and the NSW Police Force have leave to approach my Associate as a matter of urgency for a listing in the event that they seek to claim privilege in relation to the document referred to in Order 2;
4.The wife be responsible for compensating the Australian Federal Police (or if relevant, the NSW Police Force) for any costs incurred by them for producing the document pursuant to these orders;
5.The Registrar is requested to urgently obtain a transcript of Mr R’s evidence on … during a criminal trial.
I certify that the preceding forty-six (46) paragraphs are a true copy of the ex tempore reasons for judgment of the Honourable Justice Watts delivered on 11 October 2019.
Associate:
Date: 15 October 2019
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