PHU & TRAN

[2021] FamCA 443

FAMILY COURT OF AUSTRALIA

PHU & TRAN [2021] FamCA 443

FAMILY LAW – PROPERTY – final property settlement – where the parties were married for 64 years and had eight children – where both parties made substantial contributions to the asset pool – where the second respondent son claimed an interest in real property held by the husband and the wife.

FAMILY LAW – PROPERTY – Declaration – where the second respondent son sought declarations as to his interests in real properties.

Family Law Act 1975 (Cth)

APPLICANT: Mr Phu

RESPONDENTS:

Ms Tran

Mr B Phu

FILE NUMBER: MLC 9546 of 2018

DATE DELIVERED: 21 May 2021

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Johns J

HEARING DATE: 21 May 2021

REPRESENTATION

THE APPLICANT: In Person

COUNSEL FOR THE 1^ST RESPONDENT: Mr McCormick

SOLICITOR FOR THE 1^ST RESPONDENT: Zeljko Stojakovic Barristers & Solicitors

COUNSEL FOR THE 2^ND RESPONDENT: Mr Schembri

SOLICITOR FOR THE 2^ND RESPONDENT: Schembri & Co Lawyers

Orders

BY CONSENT BETWEEN THE FIRST AND SECOND RESPONDENTS AND NOT OPPOSED BY THE APPLICANT, IT IS ORDERED  

1. That by 14 June 2021 the applicant do all acts and things necessary to remove the caveat ... lodged against the property situate at C Street, Suburb D in the State of Victoria, more particularly described as Lot … on Title Plan ... in Certificate of Title volume ... folio ... (“the C Street property”).

2. That by 14 June 2021 the applicant do all acts and things necessary to remove the caveat ... lodged against the property situate at F Street, Suburb G in the State of Victoria, more particularly described as Lot … on Plan of Subdivision ... in Certificate of Title volume … folio … (“the F Street property”).

3. That if order 1 of these orders is not complied with, a Registrar or other officer of this Court may execute any and all documents necessary to effect the removal of caveat ... from the Certificate of Title to the C Street property, and an affidavit from a solicitor for the second respondent as to the applicant’s default will suffice for the Registrar or other officer to execute the necessary documents.

4. That if order 2 of these orders complied with, a Registrar or other officer of this Court may execute any and all documents necessary to effect the removal of caveat ... from the Certificate of Title to the F Street property, and an affidavit from a solicitor for the first respondent as to the applicant’s default will suffice for the Registrar or other officer to execute the necessary documents.

5. That the first respondent’s litigation guardian and administrator, in her capacity as litigation guardian and administrator of the first respondent, forthwith do all acts and things and sign all documents necessary to:-

   (a)Transfer the first respondent’s right, title and interest in the F Street property to the second respondent absolutely; and

   (b)Wind up the H Family Trust.

6. That each of the parties bear their own costs of and incidental to this proceeding.

7. That there be liberty to apply.

8. That all extant applications be otherwise dismissed.

AND THE COURT DECLARES:-

1. That the first respondent holds the legal title to the F Street property on trust for the second respondent, and the second respondent holds all beneficial right, title and interest in the F Street property.

2. That the second respondent holds all legal and beneficial right, title and interest in the C Street property.

AND THE COURT NOTES:- 

A.That pursuant to s 81 of the Family Law Act 1975 the parties intend that these orders shall, as far as practicable, finally determine the financial relationship between them and avoid further proceedings between them.

B.That the property known as J Street, Suburb D in the State of Victoria has been sold and pursuant to the order of Judge Wilson QC made 9 November 2018 the net proceeds of the sale ($1,596,254) have been divided 50/50 between the applicant husband and first respondent wife.  There are no other assets or liabilities of the applicant husband and first respondent wife that they desire to be divided between them.

C.That the litigation guardian of the first respondent has, in accordance with rule 6.13(1)(d) of the Family Law Rules 2004, filed an affidavit setting out the facts relied upon as to why these consent orders are in the best interests of the first respondent.

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 Phu & Tran 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 MELBOURNE

FILE NUMBER: MLC 9546 of 2018

MR PHU

Applicant

And

MS TRAN

and

MR B PHU

Respondents

EX TEMPORE REASONS FOR JUDGMENT

1. This matter is listed for final hearing in relation to the parties’ competing property applications, having been in my docket now for a period of almost two years.  Unfortunately, the impact of COVID-19 has caused significant delay, particularly as this is a matter where the parties require the assistance of interpreters, thus necessitating a face to face hearing.

2. The proceedings relate to the Application initially filed by the applicant husband seeking a division of the parties’ property interests.  The husband represents himself at Court today with the assistance of an interpreter.

3. The wife is the respondent in the proceedings.  A case guardian has been appointed to represent her in the proceedings due to her incapacity.

4. The second respondent is the parties’ son, Mr B Phu.  He is represented by Counsel.

5. The husband and the wife shared a very long marriage of some 64 years.  The marriage produced eight children, all of whom are adult and living independently. 

6. Both the first and second respondents have filed Case Outlines and trial affidavits upon which they rely in support of their application. The applicant husband has filed no trial documents in compliance with my trial directions.

7. The submissions made today and the evidence confirms that the husband and the wife have worked hard throughout their long relationship, each contributing to the best of their ability. 

8. The parties have acquired real properties during the course of their relationship. The central dispute between the parties relates to the circumstances of the acquisition of two properties, one at F Street, Suburb G and the other at C Street, Suburb D.

9. The contention of the second respondent is that those properties were acquired as a result of his direct financial contributions.  The title to the property at C Street, Suburb D is registered in the second respondent’s name.  Accordingly, the title reflects what the second respondent contends is his interest in that property.

10. The second respondent’s position is that the F Street property was purchased with his savings and funds borrowed from his business associates.  The property was registered in the name of the wife as trustee for the H Family Trust upon the advice of his accountant as a means of asset protection.  The second respondent has produced copies of the loan agreements and the power of attorney executed at the time of acquisition of F Street.  Those contemporaneous documents confirm his contentions.  As a result of his direct financial contributions the second respondent contends that he has a beneficial interest in the property pursuant to a resulting trust and seeks a declaration confirming his interest in F Street.  The evidence of the second respondent is unchallenged in respect of those matters.

11. The case guardian and the second respondent are in agreement that it is just and equitable that orders and declarations be made to effect a transfer of the F Street property to the second respondent and further that there be a declaration confirming the second respondent’s title to the C Street property.  They seek orders and declarations in those terms.

12. The applicant filed a Notice of Discontinuance in respect of his application on 20 December 2020.  As a result, he seeks no orders of the Court.  Since he filed that Notice of Discontinuance, he has, on occasion, appeared before me in person.

13. The husband appeared before me on 18 February 2021.  At that time, there was agreement between the first and second respondents as to the orders sought confirming the second respondent’s ownership of the F Street and C Street properties.  At that hearing, the husband then confirmed that he did not oppose the making of orders in those terms.  However, I did not make orders at that time on the basis that it was the Court’s view that before finalising the matter, the husband should have the opportunity of obtaining independent legal advice in relation to the proposed orders and declarations.

14. Some three months have now elapsed, and I am satisfied that the husband has had ample opportunity to obtain advice in relation to these matters should he so wish.

15. At the commencement of the hearing today the husband made a statement to the Court.  He informed the Court that, at 89 years of age, he is old and frail, that he has medical conditions, that he has suffered and feels that he has been cheated by his children.  He told the Court that he left Vietnam and his assets in Vietnam to provide a better future for his children.  He stated that his children have lost all decency and are no longer human beings.  He also told the Court that it was his view that his children have not repaid his love, nor have they shown him any respect.  He asked that I consider these matters.

16. I have listened carefully to Mr Phu’s submissions in relation to those matters.  However, in circumstances where he has no application before the Court and filed no evidence in accordance with the trial directions I am not in a position to consider those matters.  At the conclusion of his submissions, Mr Phu confirmed that he wished the proceedings to end today. 

17. I have spent time this morning reading to Mr Phu each of the orders that I am asked to make by the other parties.  Mr Phu has had the assistance of an interpreter throughout the hearing.

18. In relation to each of the orders that is sought by the second respondent and the first respondent, Mr Phu has confirmed that he does not oppose the orders and declarations as sought.

19. The consent of parties is but one aspect of the task required of a Judge in determining the matter. I must also be satisfied as to the justice and equity of the proposed orders. I must be satisfied that the orders satisfy the requirements of section 79 of the Family Law Act. I must be satisfied that the orders appropriately reflect the many and varied contributions made by the parties through the course of their very long marriage. I must also be satisfied that the orders appropriately reflect, and take into account, the matters set out in section 75(2) of the Family Law Act.

20. Having reviewed the material filed on behalf of the parties, having had the benefit of the written submissions filed on behalf of the first and second respondents and having had the benefit of oral submissions made today on behalf of the first and second respondents, I am satisfied that the proposed orders are just and equitable. 

21. I am further satisfied that the declarations as sought at paragraphs 1 and 2 are appropriate having regard to the unchallenged evidence, which I accept, of the second respondent as to the direct financial contributions made by him to the acquisition of the properties at C Street and F Street.

22. Accordingly, I will make orders and declarations in the term of the Minute of orders sought.

I certify that the preceding twenty-two (22) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Johns delivered on 21 May 2021.

Associate: 

Date:  24 June 2021