Sresbodan and Sresbodan and Anor

[2012] FamCA 221

FAMILY COURT OF AUSTRALIA

SRESBODAN & SRESBODAN AND ANOR [2012] FamCA 221

FAMILY LAW – PROPERTY – Payment of $150,000 from trust to husband

Family Law Act 1975 (Cth)

Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337

APPLICANT: Ms Sresbodan

RESPONDENT: Mr Sresbodan

INTERVENOR: Trustee in Bankruptcy

FILE NUMBER: SYF 4345 of 2006

DATE DELIVERED: 30 March 2012

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: Watts J

HEARING DATE: 30 March 2012

REPRESENTATION

SOLICITOR FOR THE APPLICANT: Adrian Twigg & Co

SOLICITOR FOR THE RESPONDENT: Litigant in person

SOLICITOR FOR THE INTERVENOR: Watson & Watson

Orders

1. Adrian Twigg & Co draw from the account that they current hold in trust on behalf of the husband and wife the sum of $150,000 and pay that amount to the husband.

2. The hearing dates that have been scheduled to commence 14 May 2012 for three days be vacated.

3. The trustee, in a timely manner and from time to time, inform the wife of the progress of the proceedings in the Federal Court and at reasonable intervals, an update as to the cost the trustee is incurring.

4. This matter be adjourned for mention at 2.15pm on 18 June 2012.

5. By 12 June 2012 the solicitor for the trustee file and serve an affidavit indicating what the current position is in relation to the Federal Court proceedings.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Sresbodan & Sresbodan and Anor has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: SYF 4345 of 2006

Ms Sresbodan

Applicant

And

Mr Sresbodan

Respondent

EXTEMPORE REASONS FOR JUDGMENT

1. I note that in discussions with the husband today arising from paragraph 38 of the Full Court’s decision of 16 December 2011, he made an oral application that I disqualify myself. Although he put reasons that have been previously canvassed in a previous disqualification application, upon my invitation, he made an application that I disqualify myself on the basis that on 19 May 2010 I had been presented with a set of terms which purported to a final agreement between the husband and the wife as to alteration of property interests.  I have no independent memory of the content of that agreement but upon reviewing the transcript it seems I was invited to read it.  I cannot say whether or not I read it or not.  I may well have read it given I was invited to. 

2. The trustee on that occasion raised some difficulties with the terms that had been agreed to between the husband and wife and that agreement did not proceed.

3. Ultimately in May 2010, on the joint application of the trustee and the wife, I made some interim orders in relation to the sale of the K property.

4. Although I am not satisfied that the husband has established the test as set out in Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337, I indicate I will arrange for another judge to ultimately hear this matter. However, for the time being, I shall continue to manage this matter until it is ready to be reset for a final hearing.

5. Mr Ash, on behalf of the trustee, has indicated to me that there are proceedings listed before Justice Emmett in the Federal Court on … May 2012 and the husband has indicated that he intends to appeal the decision of the trustee that was made on … March 2012 and that it is likely that that appeal will be listed before Justice Emmett on … May 2012. I have indicated that I require those matters in the Federal Court to be finalized prior to this matter being allocated time for the final hearing pursuant to s 79.

6. I will vacate the hearing dates that have been scheduled for 14 May 2012 for three days.

7. The husband has also today made an application that he be provided with $150,000 by way of payment from the monies held by the wife. Those monies are held currently in trust as to one half in the name of the trustee and the other half in the name of the wife. The trustee does not oppose me making an order from the wife’s share of the proceeds of the sale of the K property in favour of the husband. The wife has already received $450,000 from the proceeds of the sale of K. Adopting a conservative approach on the submissions that have been made, it seems clear that on the figures as we have them today, the husband would receive at least that amount by way of payment as a result of the outcome of the s 79 proceedings and accordingly that order should be made in his favour.

I certify that the preceding seven (7) paragraphs are a true copy of the ex tempore reasons for judgment of the Honourable Justice Watts delivered on 30 March 2012.

Associate: 

Date:  10.4.2012