Vetsch & Yosufai
[2023] FedCFamC1F 494
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Vetsch & Yosufai [2023] FedCFamC1F 494
File number(s): BRC 10889 of 2016 Judgment of: BAUMANN J Date of judgment: 22 February 2023 Catchwords: FAMILY LAW – Property – Where the Respondent was in a relationship with each of the other parties to the proceedings – Where each of the parties reside in Australia, except for the Respondent husband – Whee a statutory trustee of sale was appointed in to sell a number of real properties – Where the husband is no longer engaging in the proceedings – Where the parties who are presently engaged in the proceedings attended a Conciliation Conference with a Senior Judicial Registrar and reached final agreement – - Final property orders made Legislation: Family Law Act 1975 (Cth) Division: Division 1 First Instance Number of paragraphs: 24 Date of last submission/s: 22 February 2023 Date of hearing: 22 February 2023 Place: Brisbane Solicitor for the Applicant: Wellners Lawyers Respondent: No appearance Solicitor for the First Intervener: Colville Johnstone Lawyers Second Intervener: Litigant in person Solicitor for the Trustee for Sale: No appearance ORDERS
BRC 10889 of 2016 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MS VETSCH
Applicant
AND: MR YOSUFAI
Respondent
MS DEVEREUX
First Intervener
MS SULTAN
Second Intervener
MR G SOLICITOR
Trustee for Sale
order made by:
BAUMANN J
DATE OF ORDER:
22 FEBRUARY 2023
THE COURT ORDERS ON A FINAL BASIS:
Trust funds
1.That the non-superannuation funds held in trust by Mr G, Solicitor, be disbursed in the following manner within seven (7) days of the date of this Order:
(a)25% to the Applicant;
(b)25% to the First Intervenor; and
(c)50% to the Second Intervenor.
2.That in relation to Orders 1 and 4 hereof, Mr G, as Trustee of the superannuation fund pursuant to Order 13 of the Order dated 15 May 2019 (“the Trustee”), is to first use sole discretion to pay all costs associated (directly or indirectly) with the management of the superannuation fund.
T Street property
3.That within thirty (30) days of the date of this Order, the Respondent transfer to the First Intervenor, at the Respondent’s expense, all the Respondent’s right title and interest in the property situate at T Street, Suburb L in the State of Queensland and shall hereafter be released in respect of any and all liabilities attaching to the property.
Yosufai Superannuation Fund
4.That with respect to the Yosufai Superannuation Fund (“the Superannuation Fund”):
(a)the Trustee shall:
(i)exercise all powers and responsibilities ordinarily vested in the Trustee of a self-managed superannuation fund; and
(ii)in his sole discretion form a view as to the assets and liabilities of the superannuation fund and the extent of each member’s entitlements.
(b)in accordance with s 90XHA of the Family Law Act 1975 (Cth) (“the Act”) with respect to the Applicant, and s 90XH of the Act with respect to the First Intervenor, each is entitled to a specified percentage, being 30% of each splittable payment made out of the superannuation fund, and the interest of the Respondent is reduced accordingly;
(c)in accordance with s 90XH of the Act with respect to the Second Intervenor, the Second Intervenor is entitled to a specified percentage, being 40% of the splittable payment made out of the superannuation fund and the interest of the Respondent is reduced accordingly;
(d)Orders 4(b) and 4(c) have effect from the operative time; and
(e)the operative time for the purposes of this Order is the tenth business day after the superannuation fund trustee has been given notice.
5.That for the purposes of s 90XZD of the Act, this Order binds the trustee of the superannuation fund, the Court being satisfied that the trustee has been accorded procedural fairness in relation to the Orders.
6.That the trustee is released and held harmless in respect of all matters in connection with the superannuation fund or the operation of this Order.
Omnibus order
7.That except as otherwise provided herein, each party shall, and except for the purposes of enforcing the payment of any money due under this or any subsequent Order:
(a)be entitled absolutely to any and all assets and financial resources in their respective possessions as at the date of order including but not limited to superannuation interests, bank accounts, investments, motor vehicles, real property, household goods and personal effects; and
(b)be solely liable for and indemnify the other party/parties in respect of any debts or liabilities in their respective names as at the date of order and any liabilities attaching to any item of property to which they are entitled pursuant to this Order.
8.That each party shall be solely responsible for the preparation of any documentation in relation to the transfer of any property to which they are entitled pursuant to this agreement and the other party/parties shall execute any such document within forty eight (48) hours of any request.
9.That each party shall be solely liable for any and all costs, fees, taxes, duties and expenses relating to any transfer of any property which they are entitled pursuant to this Order.
10.That pursuant to s 106A of the Act, should any party refuse or neglect to execute any deed or instrument necessary to give effect to any transfer of property pursuant to this Order, then the Registrar of the Court is appointed to execute all such deeds and instruments in the name of the party in default.
Personal property
11.That the Applicant, First Intervenor and Second Intervenor retain the following property and the Respondent will relinquish all interests in same and if necessary sign all documents to transfer his interest in same to the Applicant, First Intervenor and Second Intervenor, at the expense of the parties:
(a)Motor vehicle/s in their name;
(b)Superannuation fund/s in their name;
(c)Proceeds in their bank accounts; and
(d)Shares and chattels in their name.
12.That pursuant to s 90K(c) of the Family Law Act 1975 (Cth) the Financial Agreement dated 20 January 2015 be discharged.
IT IS NOTED:
A.That as the Respondent husband has absented himself from these proceedings, it is anticipated by the Court that the Registrar will be required to execute documents on behalf of the Respondent.
B.That the trustee of the superannuation fund has consented to this Order.
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).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish 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 the pseudonym Vetsch & Yosufai has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
EX TEMPORE REASONS FOR JUDGMENT
(Settled from the oral reasons delivered)BAUMANN J:
Mr Yosufai seems to have left a litany of failed relationships and financial ruin after his period of time in Australia as a medical professional before, it seems – and he chose when things got too difficult – to go back to his country of origin, Country D, and has not engaged with the Court since 2018 in any effective way. I am satisfied, as directed by the Senior Judicial Registrar, that the applicant’s solicitors have done their best to bring the nature of the order made by the Senior Judicial Registrar, which I will turn to shortly, to his attention via two Country D email addresses.
There is at least some suggestion that Mr Yosufai, who for the sake of these reasons I will call the “husband” may have incurred some difficulties with a medical statutory authority, but there is not much evidence about that other than a referral or reference to a tribunal hearing of some nature.
BACKGROUND
The background can shortly be described as follows: the husband first married Ms Sultan in 1994. That relationship has been the subject of a divorce. But after the parties had, it seems, been married for some 18 years. The relationship produced three children, Ms F, Mr P and Ms Q, who are all now adults.
At some stage as that relationship was crumbling, the husband, I am satisfied on the evidence, entered into a de facto relationship with Ms Devereux. That relationship seems to have commenced in around early 2013. It bore two children, X, who is now aged almost eight years and U, who is now six years of age. At some time whilst that relationship was ongoing in some form, the husband entered into a new relationship with Ms Vetsch, who is the applicant in these proceedings. Ms Vetsch says that she met the husband in 2011 and she asserts that they commenced cohabitation perhaps in 2012, but at least by 2014 (I know the husband swears to it being mid-2012) and the parties also disagree about when separation occurred.
Ms Vetsch says in her material that is occurred in May 2016 and the husband says in June 2014. Be that as it may, the combination of the husband’s activities reveals three separate women with whom he had either a de facto relationship – or in the case of Ms Sultan – a marriage – and at least five children.
There are no children of the relationship with Ms Vetsch. The proceedings commenced with the applicant, Ms Vetsch, filing an application in October 2016, over six years ago. The history shows that after a period of time in the Federal Circuit Court (as it was then known) it was transferred to the Family Court of Australia.
The history reveals that the application, basically, was kicked from pillar to post for a few years. The two other parties were joined or sought to intervene, namely, Ms Devereux and the wife, Ms Sultan. At many times in the six years, more than one of the parties have been unrepresented. I have looked at how it has been managed by the team of Registrars on many, many, many occasions. I am not critical of their attempts to try and bring some finality for the three wives – as I shall describe them – of Mr Yosufai. Perhaps the most important order that was made during the course of the issue was when Forrest J, in May 2019, appointed Mr G as trustee for the sale of various properties.
One of those properties, at least, was held by a self-managed super fund. The parties should be very thankful for Mr G’s actions and efforts in this regard because effectively, what he has done is identify the various property interests and other than a jointly-owned home, which I will turn to shortly, dealt with a number of creditors; dealt with the non-compliance of the self-managed super fund and otherwise, in circumstances where at least one or more of these wives had no idea what was happening, crystalised the remaining asset pool such that the Court could consider some orders to be made that were just and equitable.
Along that pathway, the property at T Street, Suburb L (the Suburb L property) was valued. When a Senior Judicial Registrar who was invited to make final consent orders by default had the matter before her, she – perhaps not surprisingly – thought it was best to be dealt with by me and transferred the matter to me in August 2022.
Since the matter came into my docket, I have had two case management hearings, at least one of them being of significant length where I did my best to try and explain to the unrepresented litigants – and, I should say – supported by Ms Wellner, who is the solicitor for the applicant and has done much of the heavy lifting for this matter, having come on the record in April 2022, that many days of trial could be devoted to this matter in trying to work out the various relationships and interests, but that a pragmatic and commercial solution needed to be found.
Having, to a degree, softened them up and having them identify what they then thought their interests or demands should be and, in that regard, there have been claims for arrears of spouse maintenance and/or child support; non-compliance with a binding financial agreement, and the like.
I was able to encourage the parties to attempt a final resolution in an event called the Conciliation Conference, which took place on 7 February 2023 before an experienced Senior Judicial Registrar. I acknowledge the efforts made by the Senior Judicial Registrar in this very difficult matter, but was delighted to see that the parties were able to reach agreement at that time and the order of 7 February 2023 attaches a minute of order, which the parties have agreed to and ask me to make today.
When I say the parties, of course, it does not involve the husband for the reasons already explained. All the parties today appearing by telephone confirmed to me that they are still prepared for the orders that, through their consent on 7 February 2023, to be made by me today. Of course, the Court is not entitled to merely rubber stamp a consent order. It has a duty on the evidence, as best it can, to ensure that the orders the parties have agreed to (particularly so where the husband has taken no active role and therefore, is not appearing today) meets the just and equitable requirements prescribed by the Family Law Act 1975 (Cth) (“the Act”).
In that regard, the submissions prepared by Ms Wellner, which I read, dated 17 February – while brief and succinct are well-focused and do, in my view, support the orders being made. For the record, now the assets and liabilities – that is, the interest that need to be dealt with – can be described as follows:
Assets Non-superannuation funds held by the trustee for sale $479,501 Superannuation funds held by the trustee for sale $325,884.75 Properties situated at T Street, Suburb L, jointly owned by the husband and Ms Sultan $800,000 Total assets $1,605,385.75 Liabilities Mortgage over the property at T Street, Suburb L $286,000 Estimated further cost to wind up the trusteeship of the trustee $4,900 Total liabilities: $290,900.00 Net property pool $1,314,485.75
On the evidence before me – and I must say at times, that it is sparse and ill-focused – I am comfortable in adopting the very short submission made in the written submissions prepared and adopted by all the parties at paragraph 40 to 45, which I will incorporate in these reasons as follows:-
40. It is difficult to say with any certainty the contribution-based entitlements as:
•The Applicant made a significant Financial Contribution of $380,000.00 which was intermingled with the properties held by the First and Second Intervenor.
•The First Intervenor had/has the sole custody and financial responsibility of the 2 children since separation. The Respondent has not paid any child support to the First Intervenor. The First Intervenor has been solely responsible for the mortgage over [T Street, Suburb L] since separation.
•The Second Intervenor had a long marriage of 17 years with the Respondent. They have three (3) children, all of which are now adults. At separation two of the three children were over the age of 18 years. The Respondent has not paid any child support to the Second Intervenor.
41.The Applicant, First and Second Intervenors are all employed with varying incomes.
42. The Applicant and First Intervenor are in good health.
43. The Second Intervenor has some […] medical issues.
44. It is not known what assets the Respondent holds overseas, if any.
45.The Respondent has not participated in these proceedings since approximately 2018 despite being provided with copies of all filed court documents, correspondence and being served with a copy of all Orders made, including the Order of 7 February 2023 (which, pursuant to the Orders of 7 February 2023 were sent to 2 known last addresses of the Respondent and two known email addresses of the Respondent).
The first issue I need to deal with is a financial agreement that was entered into between the husband and Ms Sultan, and dated 20 January 2015. The agreement, on its face, complied with the requirements of the Act in that the agreement contains certificates by two solicitors who say they had provided advice to the parties as to the agreement and the fact that the agreement, if binding, would operation in substitution of any other rights they may have under section 79 of the Act.
There is nothing like sufficient evidence before me to make any declaration that the agreement is a binding financial agreement. There was no evidence actually produced. I do accept that the husband, in his only affidavit that he filed, assert that the agreement was a binding financial agreement. However, the terms of the agreement are such that many parts of the agreement could not be put into effect. The agreement provided for a range of commercial activities to be undertaken, including subdivision of a property. All that came to an end when Mr Yosufai left the country; stopped paying his mortgage, and properties were sold by mortgagees in possession.
Doing the best I can on the evidence before the Court, I am comfortably satisfied that the agreement should be set aside, pursuant to section 90K(1)(c), namely, that it is impractical for the agreement to be carried out.
The terms of the order which I am asked to make have a very strong flavour of commercial reality and sensible compromise.
The applicant has received 70 per cent of the net property pool, compromising 25 per cent of the non-superannuation funds held by the trustee, more properly, of $119,875. And 30 per cent of the superannuation funds held by the trustee, more properly, $96,295.42.
Ms Sultan, the first wife, is received 55 per cent of the net property pool, which comprises 25 per cent of the non-superannuation funds held by the trustee and 30 per cent of the superannuation funds. Together, with a transfer of the jointly-owned property to her.
And in respect of that transfer, I am satisfied that Ms Sultan has attended to payment of the mortgage, maintenance of the property since the separation of her relationship and sensibly, whilst continuing to live in the property, should be entitled to its equity.
And the final party, described in the material as the second intervenor, is to receive 28 per cent of the net property pool comprising 50 per cent of the non-superannuation funds and 40 per cent of the superannuation funds.
I take into account that the parties have sought finality of these proceedings in very difficult circumstances, and have had the benefit at times of legal advice and, more recently, the advice of Ms Wellner for Ms Vetsch and Ms Callendar for Ms Devereux, that they are ladies in different stages of their life, some with children who are infants, some with no children and some with adult children. I am satisfied that the orders that are proposed are just and equitable. I therefore make those orders on a final basis today; save that I will not make the order in relation to the financial agreement in the form set out at paragraph 12. It is not a matter for other parties to consent to the finding the financial agreement to be discharged. The correct order is the order that I have pronounced. So the order that will issue will not contain order 12, but will contain my order.
I certify that the preceding twenty-four (24) numbered paragraphs are a true copy of the ex tempore Reasons for Judgment of the Honourable Justice Baumann. Associate:
Dated: 16 June 2023
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