Sresbodan & Sresbodan and Ors - [2013] FamCA 480

FAMILY COURT OF AUSTRALIA

SRESBODAN & SRESBODAN AND ORS

[2013] FamCA 480

FAMILY LAW – PARTIAL PROPERTY SETTLEMENT – Whether just and equitable in the circumstances of the case to make an order for the interim distribution of funds – Where the primary proceedings are between the husband and wife to a marriage – Where the Trustees of the husband’s bankrupt estate are intervenors in the proceedings – Where the husband seeks funds by way of interim distribution – Consideration of the “adjustment issue” and whether on a final hearing the quantum of funds sought by the husband would give him so much that it could not be adjusted on a final hearing
FAMILY LAW – PRACTICE AND PROCEDURE – SUBPOENAS – Where the husband issued a subpoena against the Trustees of his bankrupt estate – Where the Trustees seek that the subpoena be set aside by the Court – Whether the subpoena may be set aside on the grounds that it seeks discovery or is oppressive or is otherwise an abuse of process

Family Law Act 1975 (Cth)
Family Law Rules 2004

Gabel v Yardley (2008) FLC 93-386
Harris and Harris (1993) FLC 92-378
Hatton v Attorney-General of the Commonwealth of Australia & Ors (2000)
FLC 93-038
National Employers’ Mutual General Association v Waind and Hill [1978]
1 NSWLR 372
Relationships Australia v Pasternak (1996) FLC 92-699
Strahan and Strahan (2009) 241 FLR 1
Zschokke and Zschokke (1996) FLC 92-693

APPLICANT:

Mr Sresbodan

RESPONDENT:

Ms Sresbodan

INTERVENORS:

Mr Vanin and Mr Cox

FILE NUMBER:

SYF

4345

2006

DATE DELIVERED:

20 June 2013

PLACE DELIVERED:

Sydney

PLACE HEARD:

Sydney

JUDGMENT OF:

Fowler J

HEARING DATE:

23 May 2013

REPRESENTATION

APPLICANT:

Mr Sresbodan

SOLICITOR FOR THE RESPONDENT:

Mr Richardson of Adrian Twigg & Co

COUNSEL FOR THE INTERVENORS:

Mr Ash

SOLICITOR FOR THE INTERVENORS:

Watson & Watson

Orders

The husband’s Amended Application in a Case filed 1 May 2013 is dismissed.
The subpoena sought by the husband to be issued on the Trustees in the terms set out in the subpoena returnable on 15 May 2013 is set aside.
The costs of the parties are reserved to the hearing.
The wife’s Application for Final Orders filed on 24 November 2006 is listed for Callover before me at 10.00 am on Friday, 19 July 2013 unless the parties are in the meantime otherwise advised.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Sresbodan & Sresbodan and Ors 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

Mr Sresbodan

Applicant

And

Ms Sresbodan

Respondent

And

Mr Vanin and Mr Cox

Intervenors

REASONS FOR JUDGMENT

Introduction

The proceedings before the Court are proceedings commenced by

Mr Sresbodan (“the husband”) by Amended Application in a Case filed on 1 May 2013.
The husband was self-represented.
At the commencement of the hearing, the husband made an oral application…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2013] FamCA 480
Decision Date

CaseChat Overview and Summary

The proceedings before the Family Court of Australia involved Mr Sresbodan (the husband) and Ms Sresbodan (the wife), with the Trustees of the husband's bankrupt estate, Mr Vanin and Mr Cox, intervening. The husband sought an urgent interim distribution of $250,000 from his bankrupt estate for legal costs, living expenses, and to repay debts. He also sought to have the Trustees struck out of the proceedings, alleging they had no standing and that his bankruptcy was based on a false instrument. The Trustees opposed the husband's application, as did the wife. Mr E appeared on behalf of creditors of the bankrupt estate, who had an interest in the outcome due to potential insufficient funds to satisfy their debts.

The Court was required to determine two primary legal issues. Firstly, whether it was just and equitable to make an interim order for the distribution of funds from the husband's bankrupt estate, considering the potential impact on a final property settlement. Secondly, the Court had to consider the husband's earlier attempt to issue a subpoena against the Trustees, which they sought to have set aside on grounds including it being an abuse of process or oppressive.

The Court refused the husband's application for an interim distribution of funds. It reasoned that any such order would need to be made under the Court's power to make property settlement orders, and that the "adjustment issue" needed to be considered. This involved assessing whether the quantum of funds sought by the husband would be so significant that it could not be adequately adjusted in a final property settlement hearing. The Court also noted that the husband's claims regarding the validity of his bankruptcy and the conduct of the Trustees were matters to be canvassed in separate proceedings before the Federal Court, which had already been seized of those issues. Consequently, the Family Court declined to embark on a consideration of them.

The Court ordered that the husband's Amended Application in a Case be dismissed. Furthermore, the subpoena sought by the husband to be issued on the Trustees was set aside. The costs of all parties were reserved to the final hearing of the wife's Application for Final Orders, which was scheduled for a later date.

Orders