Polak & Polak
[2024] FedCFamC1F 828
•2 December 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Polak & Polak [2024] FedCFamC1F 828
File number(s): CAC 1719 of 2024 Judgment of: GILL J Date of judgment: 2 December 2024 Catchwords: FAMILY LAW – Property – Application by the wife for the husband’s motor vehicle and associated keys to be placed in her care – Where no evidence has been provided to suggest that the husband is not currently in possession of the motor vehicle – Where there are orders preventing the husband from dissipating the marital pool – Husband to deliver the motor vehicle and associated keys to the wife’s solicitors Division: Division 1 First Instance Number of paragraphs: 7 Date of hearing: 2 December 2024 Place: Canberra Solicitor for the Applicant: Ms Murrell, Farrell Lusher Solicitors Solicitor for the First Respondent: Mr Horne, BJH Lawyer Solicitor for the Second Respondent: No attendance by or on behalf of the Second Respondent ORDERS
CAC 1719 of 2024 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MS POLAK
Applicant
AND: MR POLAK
First Respondent
B PTY LTD (IN LIQUIDATION)
Second Respondent
ORDER MADE BY:
GILL J
DATE OF ORDER:
2 DECEMBER 2024
THE COURT ORDERS THAT:
1.The husband forthwith deliver to the wife’s solicitors, Farrell Lusher Solicitors, Motor Vehicle 1, along with its associated keys.
2.The solicitors for the wife are to forthwith place on notice the liquidators for B Pty Ltd of these proceedings and of orders made in these proceedings.
3.The proceedings are adjourned to 10 am on 19 December 2024 for further directions and/or further hearing.
IT IS NOTED THAT
4.The court has been informed that the husband has filed a debtor’s petition and is anticipated that his estate will shortly be under the control of a trustee in bankruptcy.
5.The wife has indicated that she is giving consideration to the joinder of the husband’s parents and of a Mr C as respondents in respect of a s 106B application.
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.
IT IS NOTED that publication of this judgment by this Court under a pseudonym has been approved pursuant to subsection 114Q(2) of the Family Law Act 1975 (Cth).
EX TEMPORE REASONS FOR JUDGMENT
GILL J:
These proceedings concern the property of the parties and associated entities. The wife has commenced property proceedings. During the currency of those proceedings the wife alleges that a number of assets have been disposed of by the husband. Immediately before the matter was due before Judge Hughes in Division 2 of the Federal Circuit and Family Court of Australia, the husband caused a corporate entity controlled by him, namely B Pty Ltd to enter into voluntary liquidation. Liquidators have been appointed, being a Mr D and a Mr E of F Company. B Pty Ltd has been joined to these proceedings but the liquidators have not yet been served with the order joining them to the proceedings.
As part of the suite of orders made by her Honour, orders were made to cause the husband to file an affidavit providing financial disclosure, including specifically to provide details relating to the sale of plant and equipment, including Motor Vehicle 1. It is apparent that the husband has not complied with the requirement made by her Honour that he file such an affidavit. In fact, he has filed no affidavit since the order was made. He asserts, through his legal representative, that he may have some form of privilege claim in circumstances where he currently faces fraud proceedings.
The circumstances of a potential privilege claim were not identified in connection with disclosure in respect of Motor Vehicle 1. His legal representative also contends that there is an expense associated with compliance with Judge Hughes’ orders that the husband is unable to meet. It is unclear why there is a particular expense in relation to disclosure in respect of Motor Vehicle 1, if in fact it has been disposed of. The legal representative for the husband contends that the husband has instructed him that the vehicle has in fact been disposed of.
A number of propositions are supported by evidence. The first is that at paragraph 30(c) of the husband’s primary affidavit he contended that at the commencement of the relationship he owned the vehicle. It can be inferred from that that the vehicle was in existence, at least on his contention, at the commencement of the relationship. The second matter that can be inferred is that the husband has recently advertised a vehicle for sale with an ad produced by the wife at Exhibit MSP1 of her affidavit, which I admit into evidence and mark as Exhibit W1. The third is that he, despite the specific order for disclosure, has given no disclosure in respect of the disposal of the vehicle.
In circumstances where there has been a lack of disclosure, Full Court authority indicates that I need not be unduly cautious in respect of drawing inferences adverse to the husband in respect of the asset. I thereby infer that the vehicle was owned by the husband of the commencement of the relationship and that he has recently had control of the vehicle, absent disclosure circumstances of its disposal, I infer that it remains within his control.
Under circumstances whereat the live issue in these proceedings is as to whether or not the husband has and continues to dispose of the assets of and associated with the parties, it is just and convenient to provide injunctive relief to the wife and to cause the husband to deliver forthwith to the wife the vehicle along with associated keys. This is in circumstances where the wife will not be at liberty to deal with the vehicle in the same way that the husband is not at liberty to do deal with the vehicle, but in circumstances where, in the absence of disclosure being provided by the husband, the base protection of the asset is best afforded by being in the wife’s possession.
I note there is potential that as the Corporation has entered into liquidation that if the asset is ultimately shown to have been an asset of the Corporation the liquidators may have a claim upon it. The wife is on notice as to that potential eventuality.
I certify that the preceding seven (7) numbered paragraphs are a true copy of the Ex Tempore Reasons for Judgment of the Honourable Justice Gill. Associate:
Dated: 12 December 2024
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