FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Perez & Molina [2024] FedCFamC2F 711
File number(s): SYC 3213 of 2020 Judgment of: JUDGE OBRADOVIC Date of judgment: 5 June 2024 Catchwords: FAMILY LAW – PROPERTY – Movement of moneys through businesses and trust accounts – Intermingling of business, trust, and personal moneys – Non disclosure by parties – Unexplained discrepancies in evidence – Jones v Dunkel inference – Adjustment for future needs – Just and equitable Legislation: Evidence Act 1995 (Cth) s 91
Family Law Act 1975 (Cth) ss 75, 79
Cases cited: Bevan & Bevan [2013] FamCAFC 116
Blandford & Esmore [2022] FedCFamC1A 67
Chapman & Chapman [2014] FamCAFC 91
Dickons & Dickons [2012] FamCAFC 154
In the Marriage of Briese (1985) 10 Fam LR 642
In the Marriage of Weir (1992) 16 FamLR 154
Jones v Dunkel (1959) 101 CLR 298
Livesey v Jenkins [1985] 1 All ER 106
Oriolo v Oriolo (1985) 10 Fam LR 665; [1985] FLC 91-653
Russell & Russell [1999] FamCA 1875
Scott & Danton [2014] FamCAFC 203
Stanford & Stanford [2012] HCA 52
Teal & Teal [2010] FamCAFC 120
Trevi & Trevi [2018] FamCAFC 173
Division: Division 2 Family Law Number of paragraphs: 222 Date of hearing: 16 & 18 October 2023, 4-6 March 2024 Place: Parramatta Counsel for the Applicant: Mr Strik Solicitor for the Applicant: Windsor Law Group Counsel for the Respondent: Mr Guterres Solicitor for the Respondent: Matthews Folbigg Pty Ltd ORDERS
SYC 3213 of 2020 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MS PEREZ
Applicant
AND: MR MOLINA
Respondent
ORDER MADE BY:
JUDGE OBRADOVIC
DATE OF ORDER:
5 JUNE 2024
THE COURT ORDERS THAT:
1.Within 14 days of the date of these orders, the parties must do all acts and things, and sign all documents and give all consents necessary to cause the distribution of the funds held on trust in the G Conveyancing trust account, being the net proceeds of sale of the property located at E Street, Suburb C, NSW, in the following manner:
(a)To the applicant wife (‘wife’) the amount of $678,865; and
(b)To the respondent husband (‘husband’) the amount of $438,925.
2.Within 28 days of the date of these orders, the parties shall do all acts and things and sign all documents necessary to vest to the husband the T Trust, and the husband indemnify and keep indemnified the wife in respect of any and all liabilities arising out of the parties’ operation of the trust.
3.Except as otherwise provided in these orders the parties be solely entitled to the exclusion of the other to:
(a)All items of property in their respective possession, custody and control;
(b)Any funds, shares, or other investments standing in any bank account in their name; and
(c)Any superannuation fund in an account in their name.
4.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.
5.Within 14 days…
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CaseChat Overview and Summary
The court had to decide several legal issues, including the extent to which the parties had disclosed all relevant financial information and whether the unexplained discrepancies justified any inferences under Jones v Dunkel. The court also needed to determine the appropriate division of the net proceeds from the sale of a property, as well as the distribution of other assets and liabilities. Given the non-disclosure and discrepancies, the court applied the Jones v Dunkel inference, adjusting the distribution to account for the husband's future needs.
Judge Obradovic concluded that the distribution of the net proceeds from the sale of the property at E Street, Suburb C, NSW, should be $678,865 to the wife and $438,925 to the husband. The court also ordered that the T Trust be vested in the husband, who was to indemnify the wife against any liabilities arising from the trust. Additionally, each party was to be solely liable for any encumbrances on the property they received. The joint bank account was to be closed, with the wife receiving 60% and the husband 40% of the balance. The court authorised a Registrar to enforce these orders in the event of default by either party.
Orders
Orders of the court
SYC 3213 of 2020
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN:
MS PEREZ
Applicant
AND:
MR MOLINA
Respondent
ORDER MADE BY:
JUDGE OBRADOVIC
DATE OF ORDER:
5 JUNE 2024
THE COURT ORDERS THAT:
1. Within 14 days of the date of these orders, the parties must do all acts and things, and sign all documents and give all consents necessary to cause the distribution of the funds held on trust in the G Conveyancing trust account, being the net proceeds of sale of the property located at E Street, Suburb C, NSW, in the following manner:
(a) To the applicant wife (‘wife’) the amount of $678,865; and
(b) To the respondent husband (‘husband’) the amount of $438,925.
2. Within 28 days of the date of these orders, the parties shall do all acts and things and sign all documents necessary to vest to the husband the T Trust, and the husband indemnify and keep indemnified the wife in respect of any and all liabilities arising out of the parties’ operation of the trust.
3. Except as otherwise provided in these orders the parties be solely entitled to the exclusion of the other to:
(a) All items of property in their respective possession, custody and control;
(b) Any funds, shares, or other investments standing in any bank account in their name; and
(c) Any superannuation fund in an account in their name.
4. 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.
5. Within 14 days of the date of these orders, the parties shall do all acts and things and sign all documents necessary to cause the closure of the joint H Bank account, account number …40, with the balance (if any) be distributed such that the wife receive 60% and the husband 40%.
6. Pursuant to section 106A of the Family Law Act 1975 (Cth) a Registrar of the Federal Circuit and Family Court of Australia is authorised to execute any document or do any such thing as is required to give effect to these Orders in the event of a default of a party to execute such document or do such things as is necessary under these Orders.
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).
Part XIVB of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish an account of proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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