Starke & Trenerry

Case [2025] FedCFamC1F 52

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 1)

Starke & Trenerry [2025] FedCFamC1F 52

File number: PAC 5352 of 2023
Judgment of: AUSTIN J
Date of judgment: 4 February 2025
Catchwords: FAMILY LAW – Practice and procedure – Review – Property – Where the applicant de facto husband seeks review of a selection of interim orders made by a senior judicial registrar (“the registrar”) – Where several orders collectively regulate the parties’ dealings with bitcoin – Where the respondent de facto wife could not meet the burden of proving entitlement to an interim property settlement order in respect of the applicant’s bitcoin – Orders made restraining the parties’ dealing of bitcoin in their respective possession – Where an order requiring the applicant to remove caveats over properties registered by his litigation funder is discharged – Where the litigation funder is not an alter ego of the applicant – Where the registrar made an order restraining the respondent from dealing with properties without notice to the applicant – Where the applicant sought to replace the injunction to unconditionally restrain the respondent’s dealings with the properties – Where the applicant could not meet the burden of showing why the respondent should be restrained from dealing with her properties as she pleases – Where several orders of the registrar are discharged and replaced – Application for review and the response thereto otherwise dismissed.
Legislation:

Family Law Act 1975 (Cth) Pt VIII, VIIIAB, ss 79, 114

Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) r 14.07

Real Property Act 1900 (NSW)
Cases cited:

Ascot Investments Pty Ltd v Harper (1981) 148 CLR 337; [1981] HCA 1

Gabel v Yardley (2008) FLC 93-386; [2008] FamCAFC 162

Hickey & Hickey & Attorney-General for the Commonwealth of Australia (Intervener) (2003) FLC 93-143; [2003] FamCA 395

Stanford v Stanford (2012) 247 CLR 108; [2012] HCA 52

Strahan & Strahan (Interim Property Orders) (2011) FLC 93-466; [2009] FLC 93-466

Tsiang & Wu (2019) FLC 93-911; [2019] FamCAFC 128

Division: Division 1 First Instance
Number of paragraphs: 39
Date of hearing: 4 February 2025
Place: Newcastle (via MS Teams)
Counsel for the Applicant: Mr Othen SC
Solicitor for the Applicant: Jano Family Law
Counsel for the Respondent: Ms Jeliba
Solicitor for the Respondent: Barkus Doolan Winning Lawyers

ORDERS

PAC 5352 of 2023

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN:

MR STARKE

Applicant
AND:

MS TRENERRY

Respondent

ORDER MADE BY:

AUSTIN J

DATE OF ORDER:

4 FEBRUARY 2025

THE COURT ORDERS THAT:

1.Orders 2, 3, 4, 7, 8, 10 and 11 made on 18 December 2024 are discharged.

2.The applicant is restrained from trading, selling or otherwise dealing with any more than 6.5 bitcoin in his present possession and control.

3.The respondent is restrained from trading, selling or otherwise dealing with any more than 6.5 bitcoin in her present possession and control.

4.Otherwise:

(a)the Application for Review filed on 23 December 2024 is dismissed;

(b)the application for relief set out in…

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Starke & Trenerry [2025] FedCFamC1F 52
Case
[2025] FedCFamC1F 52
Decision Date

CaseChat Overview and Summary

The case of Starke & Trenerry involved the de facto husband, Mr Starke, filing an application for review against the decisions of a senior judicial registrar made in interim proceedings under Pt VIIIAB of the Family Law Act 1975 (Cth). The registrar had made a suite of interlocutory orders concerning the parties' bitcoin holdings and properties. Mr Starke sought to discharge or amend certain orders, particularly those requiring him to transfer more bitcoin to his de facto wife, Ms Trenerry, and those regulating their dealings with bitcoin and properties. Ms Trenerry opposed the application, arguing that Mr Starke had not met his burden of proof for the relief sought.

The legal issues before the court involved the interpretation and enforcement of the registrar's orders concerning the parties' bitcoin and property dealings. Specifically, the court had to determine whether Mr Starke should be compelled to transfer additional bitcoin to Ms Trenerry, whether the orders restraining the parties from dealing with bitcoin in their possession were justified, and whether the orders concerning the properties were appropriate. The court also had to consider whether Mr Starke's litigation funder, B Finance, was an alter ego and whether the orders concerning caveats over properties were correctly made.

In its decision, the court found that Ms Trenerry had not met her burden of proving entitlement to an interim property settlement order in respect of Mr Starke's bitcoin. The court also determined that the orders restraining the parties from dealing with bitcoin in their respective possession were justified. Regarding the properties, the court found that B Finance was not an alter ego of Mr Starke and that the order requiring him to remove caveats over properties registered by B Finance was discharged. The court further found that the order restraining Ms Trenerry from dealing with properties without notice to Mr Starke was appropriate. However, Mr Starke could not show why Ms Trenerry should be restrained from dealing with her properties as she pleased, and thus the orders were adjusted to reflect this.

The court discharged several orders made by the registrar and replaced them with new orders that better reflected the parties' current holdings and circumstances. Specifically, the court discharged Orders 2, 3, 4, 7, 8, 10 and 11 made on 18 December 2024 and made new orders restraining both parties from dealing with more than 6.5 bitcoin in their possession. The court dismissed the application for review and the amended application for relief, finding that justice required resolution of the parties' actual grievances rather than strict adherence to procedural compliance.

The final orders of the court were that Orders 2, 3, 4, 7, 8, 10 and 11 made on 18 December 2024 were discharged, the applicant was restrained from trading, selling or otherwise dealing with any more than 6.5 bitcoin in his present possession and control, and the respondent was restrained from trading, selling or otherwise dealing with any more than 6.5 bitcoin in her present possession and control. The application for review, the application for relief, and the amended response were dismissed.

Orders

Orders of the court

PAC 5352 of 2023

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)

BETWEEN:

MR STARKE

Applicant

AND:

MS TRENERRY

Respondent

ORDER MADE BY:

AUSTIN J

DATE OF ORDER:

4 FEBRUARY 2025

THE COURT ORDERS THAT:

1. Orders 2, 3, 4, 7, 8, 10 and 11 made on 18 December 2024 are discharged.

2. The applicant is restrained from trading, selling or otherwise dealing with any more than 6.5 bitcoin in his present possession and control.

3. The respondent is restrained from trading, selling or otherwise dealing with any more than 6.5 bitcoin in her present possession and control.

4. Otherwise:

(a) the Application for Review filed on 23 December 2024 is dismissed;

(b) the application for relief set out in Exhibit A3 is dismissed; and

(c) the Amended Response to an Application in a Proceeding filed on 29 January 2025 is dismissed.

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.

Background

Background to the litigation

These reasons explain the disposition of a review application filed by the de facto husband.Background In October 2023, the de facto husband (“the applicant”) began proceedings against the respondent de facto wife (“the respondent”) seeking de facto financial relief under Pt VIIIAB of the Family Law Act 1975 (Cth) (“the Act”). Those proceedings are yet to be listed for trial but, since their commencement, the parties have consumed an inordinate amount of the Court’s resources in interlocutory disputes. Recently, on 18 December 2024, the senior judicial registrar (“the registrar”) made an extensive suite of interlocutory orders between the parties dealing with a range of separate issues. In all, 15 orders were made, but the following are relevant for present purposes:(a)the applicant was ordered to transfer 6.5 bitcoin to the respondent, presumably by way of interim property settlement though the orders do not say so, which she was permitted to liquidate (Orders 2, 4 and 11);(b)the applicant was restrained from liquidating any more than 6.5 other bitcoin he owns (Orders 3 and 10);(c)the applicant was ordered to cause his litigation funder (“B Finance”) to remove caveats it has registered over the title to three parcels of real property owned by the respondent and, in addition, was restrained from registering any caveat over any other “real property comprising the property pool” (Order 7); and(d)the respondent was directed to give the applicant a minimum of 28 days’ notice before moving to diminish the equity she presently enjoys in two particular parcels of real property (the “Suburb D” and “Suburb C” properties) (Order 8). On 23 December 2024, the applicant filed an Application for Review to review the registrar’s decisions reflected in Orders 2, 3, 7, 8(b), 8(d) and 10.Relief sought At the hearing, the applicant pressed for remedial orders which were different from those set out within his review application (Exhibit A3). The respondent opposed leave being granted to the applicant to amend his claim for relief in the review hearing because she diligently sought to establish the ambit of the review in court on 21 January 2025 (Exhibit R3) and through correspondence with the applicant’s lawyers on 24 January 2025 (Exhibit R4). She contended the applicant’s present position is a departure from his prior representations. The applicant was ordered to amend his review application by 24 January 2025 (Order 5 made on 21 January 2025), but he did not forewarn of his amended claim until his Case Outline was filed on 31 January 2025. The respondent’s objection is nonetheless dismissed. The respondent still had several days forewarning of the form of the applicant’s amended claim and the amended relief did not expand the areas of disagreement between the parties. If anything, the disagreement may have been marginally narrowed. The applicant did not claim any prejudice in having to meet the amended claim and its entertainment did not protract the hearing. Justice requires resolution of the parties’ actual grievances, not holding them to relatively petty procedural compliance.

Evidence

Evidence Before The Court

As it transpires, it is necessary to adjust the existing orders on a wider basis than proposed to do justice between the parties.Evidence The applicant relied upon this evidence:(a)his affidavit filed on 24 January 2025, plus annexures;(b)page 22 of the transcript of proceedings on 21 January 2025 (Exhibit A1); and(c)pages 5–6 of the transcript of proceedings on 18 December 2024 (Exhibit A2). The respondent relied upon this evidence:(a)her affidavit filed on 29 January 2025, plus annexures;(b)her financial statement filed on 17 January 2025;(c)pages 26–27 of the transcript of proceedings on 16 December 2024 (Exhibit R1);(d)page 21 of the transcript of proceedings on 21 January 2025 (Exhibit R2);(e)page 28 of the transcript of proceedings on 21 January 2025 (Exhibit R3); and(f)two emails exchanged between the parties’ solicitors on 24 January 2025 (Exhibit R4).Respondent’s bitcoin Orders 2, 3, 4, 10 and 11 collectively regulate the parties’ dealings with bitcoin. It is necessary to set out some facts. The applicant was formerly in possession of 31 bitcoin, which he alleged he owned but which the respondent was not prepared to concede. Regardless, upon discovery of the bitcoin, the respondent took steps to appropriate the 31 bitcoin by transferring them to a different electronic wallet, over which she exercises exclusive control. The applicant alleges he retains another 13 bitcoin. Despite apparently giving an undertaking that he has fully disclosed the totality of his assets, the respondent speculates the applicant may hold more than the remaining 13 bitcoin he admits. Under the reviewed orders, the respondent is restrained from dealing with the 31 bitcoin she has already appropriated (Order 11), the applicant must give the respondent another 6.5 bitcoin (Order 2), which she is then able to liquidate at will (Order 4), the applicant may liquidate at will the residual 6.5 bitcoin he would then hold (Order 3), and the applicant is then restrained from dealing with any other cryptocurrency (Order 10). The applicant sought to discharge Order 2. He does not want to give the respondent another 6.5 bitcoin when she has already taken 31 bitcoin from him. For context, it was agreed that each bitcoin is worth about US$100,000, so the transfer to her under Order 2 amounts to about US$650,000 in value. The respondent sought to retain Order 2, acknowledging that it is an interim property settlement order made pursuant to the power within s 79 of the Act. She contended it was fair that the 31 bitcoin she has already appropriated be quarantined under her temporary control and that the parties share equally in the remaining 13 bitcoin possessed by the applicant. This is a review hearing, so it is an original hearing of the parties’ interlocutory applications (r 14.07(1) of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)). The remaining 13 bitcoin is the applicant’s property. He can do with it as he pleases until a contrary order is made. In effect, the respondent is the applicant for Order 2. She wants an interim property settlement order made transferring to her the legal title in 6.5 bitcoin owned by the applicant, so she bears the burden of proving entitlement to the order in accordance with well-established principles.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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