Sirola and Sirola and Ors (No 3)

[2018] FamCA 1133

FAMILY COURT OF AUSTRALIA

SIROLA & SIROLA AND ORS (NO. 3) [2018] FamCA 1133

FAMILY LAW – PROPERTY SETTLEMENT – CONSENT ORDERS – Just and equitable – Where the parties have sought that a property settlement be effected in terms of final consent orders presented to the Court – Where the Court finds that the adjustments set out in those consent orders are just and equitable, having regard to the facts of the matter – Where a case guardian has been appointed for the husband – Where the Court finds that the making of the consent orders is in the husband’s best interests – Orders made in accordance with the proposed consent orders.

Family Law Act 1975 (Cth) ss. 79

Family Law Rules 2004 (Cth) rr. 6.13(d)

APPLICANT: Ms Sirola

RESPONDENT: Mr Sirola

INTERVENOR: Ms T Sirola and Mr U Sirola

FILE NUMBER: SYC 5380 of 2014

DATE DELIVERED: 13 December 2018

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: McClelland J

HEARING DATE: 13 December 2018

REPRESENTATION

SOLICITOR FOR THE APPLICANT: Harris Freidman Lawyers

SOLICITOR FOR THE RESPONDENT: Family Law Practice Australia Pty Ltd

SOLICITOR FOR THE INTERVENOR: Prime Lawyers

Orders

1. By consent, orders be made in accordance with the document titled “Minute of Consent Orders”, with the relevant amendments, as follows:

   It is ordered by Consent on a final basis:

   That as and by way of settlement of property pursuant to Section 79 of the Family Law Act 1975:

   1.The monies held in an interest bearing account in CC Bank and Orders in the joint names of Harris Freidman Lawyers and Family Law Practice Australia Pty Ltd being the net proceeds of sale of the property at Y Street, Suburb S be disbursed forthwith upon the making of these Orders and Orders by the Supreme Court of New South Wales in regards to the Estate of the late Mr U Sirola, as follows:

   1.1.The sum of $1,000,000.00 to be paid to the lawyers for the Applicant Wife;

   1.2.The sum of $800,000.00 to the Second and Third Respondents in their capacity as Administrators of the Estate of the late Mr U Sirola;

   1.3.The balance to the Respondent Husband, to be paid as directed by his Case Guardian.

   2.That Order 2 of the Orders made on 2 May 2016 by the Honourable Justice McClelland on 2 May 2016 be dismissed.

   3.That the funds held in Westpac accounts number #28 and number #39, being the balance of the net proceeds of sale of the property at V Street, Suburb L be paid to the Respondent Husband, as directed by his Case Guardian.

   4.That unless otherwise specified in these Orders and except for the purposes of enforcing any payment/s under these or any subsequent Order/s:

   4.1. Each party be solely entitled to the exclusion of the other to all property in the possession of party as at the date of these Orders;

   4.2.Each party forgoes any claim/s they may have to any superannuation/s belonging to or earned by the other;

   4.3.Each party be solely responsible for, and indemnifies the other party against any liability to any third party existing at the date of execution of these Orders, which was incurred in their name, whether before or after the date of these Orders and neither party may hereafter pledge the credit of the other;

   4.4.Each party is solely liable for, and must indemnify the other against, any liability encumbering any item of property to which that party is entitled pursuant to these Orders, except or otherwise provided by these Orders.

   5.Each party is directed to execute all documents and do all things necessary to give effect to the terms of these Orders.

   6.If any party fails or refuses to comply with these Orders, then:

   6.1. Each Registrar of the Family Court of Australia is appointed to execute any document or instrument to give effect to the terms of these Orders pursuant to Section 106A of the Family Law Act 1975 in the name of the party in default and to do all things necessary to give validity and operation to the document or instrument;

   6.2. The party in default must pay all costs and expenses incurred by the non defaulting party/s, calculated on the solicitor own client basis, of and incidental to the preparation of the document and/or instrument and its execution.

   NOTATIONS:

   7.These Orders are entered into by the parties subject to and contemporaneously with:

   7.1.The appointment of Mr D as the Tutor of the Respondent Husband by the Supreme Court of NSW;

   7.2.The appointment of Mr D as the Case Guardian of the Respondent Husband by the Family Court of Australia;

   7.3.The execution of a Deed of Agreement, a copy of which is attached as Exhibit “1” to this Minute of Consent Orders; and

   7.4.The execution of Short Minutes of Order to be filed in the Supreme Court of NSW, a copy of which is attached as Exhibit “2” to this Minute of Consent Orders.

   8.The Applicant Wife and Respondent Husband agree pursuant to Section 81 of the Act that these Orders are intended to operate to end all financial relationship including spousal maintenance between the parties and are an attempt to avoid further proceedings between them.

   9.The Applicant Wife agrees that these Orders are entered into by way of full and final settlement of all claims against the Respondent Husband for any past and/or future child support.

   10.The Applicant Wife agrees that the pursuant to Order 1 it represents a full and final settlement of all claims by the Applicant Wife against the Respondent Husband for any future liability for spouse maintenance.

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 Sirola & Sirola and Ors (No 3) 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 5380 of 2014

Ms Sirola

Applicant

And

Mr Sirola

Respondent

EX TEMPORE JUDGMENT

1. Having appointed a case guardian for the husband in this matter, it is now necessary for me to consider whether to approve consent orders sought by the wife, the case guardian for the husband the interveners in this matter, as proposed in Exhibit “B”.  Those proposed orders would effect a property adjustment between the husband, the wife and the interveners in these proceedings.

2. Rule 6.13(d) of the Family Law Rules 2004 (Cth) (“the Rules) states that if a person appointed as the case guardian of a party seeks a consent order, they must file an Affidavit setting out the facts relied on to satisfy the Court that the order is in the party’s best interests. In that respect, I have had regard to the Affidavit of Mr D filed on 11 December 2018, specifically paragraph 19 of that document. I have also had regard to paragraphs 20 through to 24 of Exhibit “A”, being the Outline of Argument document tendered by Mr JJ, solicitor for the interveners, as well as the oral submissions of Mr MM, solicitor for the wife.

3. By way of summary, in these proceedings, there is a significant issue as to the content of the balance sheet, in terms of monies that have allegedly been held offshore, monies that have been expended by the husband and the fact that a significant asset in the proceedings, GG Pty Ltd, has been placed into receivership.  There is also a significant issue in relation to the estate of the late Mr U Sirola, the husband’s father, which is the subject of proceedings in the Supreme Court of New South Wales.  In those proceedings, the issues include whether a property at Suburb L was gifted or sold to the husband.  The appropriateness of the husband’s conduct in using funds of the late Mr Sirola to purchase a property at Suburb S has also been called into question.

4. Having regard to the documents that have been filed in these proceedings, I am satisfied that, of those funds that can be confidently identified as constituting the matrimonial property pool, it is accurate to state that a figure of approximately $3,420,000 is available for distribution.  In addition, certain funds have been the subject of interim distributions between the parties to date, including $420,000 to the wife and $300,000 to the interveners.

5. Having regard to the balance sheet, it is then necessary, to consider whether the adjustment sought by the parties is just and equitable, pursuant to s 79 of the Family Law Act 1975 (Cth) (“the Act”).

6. I am aware of the background to these proceedings, as a result of the fact that I have previously conducted a hearing in respect to the contributions of the parties.  I have been notified of the inheritance that the husband has received, albeit with difficulty identifying the size of that inheritance.

7. Having regard to the evidence before me today and the submissions that were made to me at the time of that previous hearing, I am satisfied that an adjustment in the order of approximately 30 per cent in favour of the wife, as sought in the proposed consent orders, is appropriate.  In that regard, I note that the husband is currently incarcerated and the wife is solely responsible for physically, emotionally and intellectually sustaining the parties’ two children, who are aged 17 and 14 years.  Accordingly, it is appropriate for there to be an adjustment pursuant to s 75(2).  When that figure of 30 per cent is combined with the $420,000 received by the wife by way of interim distributions to date, the wife will have received 41.5 per cent of the matrimonial pool.

8. The Act also requires me, in making a final property adjustment between the parties, to have regard to the interests of creditors.  The interests of the creditors in these proceedings have been set out in various Affidavits filed to date.  Those interests are the subject of quite complicated proceedings in the Supreme Court.  The settlement proposed in the consent orders will result in the interveners receiving an amount of approximately $800,000, in addition to the $300,000 that has previously been distributed to them.  This amounts to approximately 32.16 per cent of the total assets.

9. If the consent orders are made, the husband will receive approximately $900,000, or 26.32 per cent of the total assets.  In the circumstances of this case, I consider that distribution to be just and equitable for the following reasons.

10. Firstly, there was a significant issue in the proceedings regarding disclosure, particularly the inadequacy of disclosure on the part of the husband, which, in my view, would have adversely impacted upon any likely outcome that he would have otherwise received in the proceedings.

11. There were also significant issues outlined in the Supreme Court proceedings as to the application of funds by the husband from the estate of his late father and the nature of funds either provided to him or assets converted to his ownership during the life of his late father, including, in terms of a contract tendered on the last Court date of these proceedings, whether the husband was gifted a property at Suburb L.

12. Further, I note that, if orders are made in accordance with the parties’ proposed minute, the husband will have certainty of outcome, without the need to litigate and the associated expense that that will involve.  The resolution of these proceedings will place the husband in a position where he will be able to obtain funds expeditiously.  Those funds are necessary for him to be able to contest the serious criminal charges that he is currently facing.

13. Having regard to that range of complex issues, which have been set out in the Affidavits to which I have earlier referred and the published decisions of the Supreme Court, I am satisfied that, in accordance with rule 6.13(1)(d), the proposed settlement is in the husband’s best interests. I am further satisfied that those proposed orders represent a just and equitable adjustment of the parties’ respective property interests, pursuant to s 79 of the Act. In those circumstances, I make orders in accordance with that proposed minute of order.

I certify that the preceding thirteen (13) paragraphs are a true copy of the reasons for judgment of the Honourable Deputy Chief Justice McClelland delivered on 13 December 2018.

Associate: 

Date:              15 February 2019