FAMILY COURT OF AUSTRALIA
| YAMADA & BERNARD | [2016] FamCA 977 |
| FAMILY LAW – PROPERTY – long relationship – two adult children – contributions. FAMILY LAW – PRACTICE & PROCEDURE – UNDEFENDED HEARING – where the respondent failed to participate in the proceedings – where there was evidence that the respondent had left the jurisdiction – where the respondent had been given ample opportunity to participate in the proceedings but had failed to do so. FAMILY LAW – PRACTICE & PROCEDURE – referral of papers to Legal Service Commission, Queensland Law Society and Queensland Bar Association |
| Family Law Act 1975 (Cth) Evidence Act 1995 (Cth) Foreign Judgments Act 1991 (Cth) Family Law Rules (2004) |
| Barristers’ Conduct Rules (23 December 2011) Australian Solicitors’ Conduct Rules 2012 |
| Allesch & Maunz (2000) 203 CLR 172 Attorney General (NT) v Kearney (1985) 158 CLR 500 AWB v Cole (No 5) [2006] FCA 1234 Brandt & Brandt (1997) FLC 92-758 Gartner v Carter [2004] FCA 258 Hoffman & Hoffman [2014] FamCAFC 92 Kennedy v Wallace (2004) 208 ALR 424 Mallet & Mallet (1984) 156 CLR 605 Norbis v Norbis (1986) 161 CLR 513 Stanford & Stanford (2012) 247 CLR 1008 Steinbrenner & Steinbrenner [2008] FamCAFC 193 |
| APPLICANT: | Ms Yamada |
| RESPONDENT: | Mr Bernard |
| FILE NUMBER: | BRC | 1690 | of | 2015 |
| DATE DELIVERED: | 17 November 2016 |
| PLACE DELIVERED: | Brisbane |
| PLACE HEARD: | Brisbane |
| JUDGMENT OF: | Hogan J |
| HEARING DATE: | 5 & 6 March 2015, 2 April 2015, 1 May 2015, 13 July 2016, and 12 & 29 September 2016 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Mr Linklater-Steele on 5 & 6 March 2016, and 12 & 29 September 2016 |
| SOLICITOR FOR THE APPLICANT: | Ms Murray, HopgoodGanim Lawyers on 5 & 6 March 2016. 2 April 2016, 13 July 2016, and 12 & 29 September 2016 |
| RESPONDENT: | No appearance |
| SOLICITOR FOR MR U: | Mr McLeod, Bartley Cohen on 6 March 2016, 2 April 2016, and 1 May 2016 |
| COUNSEL FOR MR U : | Dr Brasch of Queen’s Counsel by written submissions on 25 April 2015 |
| COUNSEL FOR MS N: | Ms Carew of Queen’s Counsel on 2 April 2016 and 1 May 2016 |
| SOLICITOR FOR MS N: | Carter Newell on 2 April 2016 and 1 May 2016 |
Orders
IT IS ODERED BY WAY OF FINAL ORDER PURSUANT TO s 90SM OF THE FAMILY LAW ACT 1975 (Cth) THAT
The Applicant retain as her own absolute property:
(a)the real property situated at B Street, Suburb S in the State of Queensland; and
(b)her bank accounts (including her ANZ account and three Suncorp accounts); and
(c)her furniture, chattels, personal effects and jewellery, including the furniture in the Suburb P property.
The Respondent retain as his own absolute property:
(a)his bank accounts, including funds held by him in the accounts in the names of Mr C and Mr E Bernard; and
(b)the furniture, chattels and personal effects and jewellery in his possession; and
(c) the motor vehicle; and
(d) the two transport businesses and associated licenses held in Island F; and
(e)any interest in any other…
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- AGLC
- YAMADA & BERNARD [2016] FamCA 977
- Case
- [2016] FamCA 977
- Decision Date
CaseChat Overview and Summary
The court was required to determine the legal issues surrounding the division of property, including the applicant's contributions to the relationship and the parties' assets. A key issue was whether legal professional privilege attached to certain communications, given the respondent's actions in placing property beyond the applicant's reach. The court also considered the applicant's conduct in withdrawing funds from a joint account and selling a motor vehicle after separation.
Hogan J found that privilege did not attach to the communications in question, as they were made for the purpose of placing property beyond the applicant's reach, and no public interest was served by allowing privilege to attach. The court accepted the applicant's explanation for withdrawing $18,000 from a joint account, finding it was for her own support in circumstances where the respondent had withdrawn significant funds and ceased financial support. Similarly, the court accepted the applicant's sale of a motor vehicle for $200 was a disposition of an asset after separation, but the sum received was so small that it was just and appropriate to take it into account during consideration of the relevant section 90SF(3) matters, declining to notionally add it back. The court also noted the parties' history of property acquisition and business operation, including properties and a store on Island F, and various Australian properties purchased in the respondent's sole name.
The court made final orders pursuant to s 90SM of the *Family Law Act 1975* (Cth). The applicant retained certain real property, bank accounts, and personal effects. The respondent retained his bank accounts, personal effects, a motor vehicle, two transport businesses and associated licenses in Island F, and any other interest in property in Island F. The respondent was ordered to transfer his interest in a Queensland property to the applicant within thirty days and to pay the applicant $406,924.64 within the same period. An injunction was issued restraining the respondent from dealing with his Australian assets until this payment was made. Each party was to retain other property in their possession or control. The court also ordered the respondent to pay the applicant's costs on an indemnity basis, fixed at $55,324.34, and directed that certain documents be forwarded to professional bodies for their consideration.
Orders
Orders of the court
IT IS ODERED BY WAY OF FINAL ORDER PURSUANT TO s 90SM OF THE FAMILY LAW ACT 1975 (Cth) THAT
1.
The Applicant retain as her own absolute property:
(a) the real property situated at B Street, Suburb S in the State of Queensland; and
(b) her bank accounts (including her ANZ account and three Suncorp accounts); and
(c) her furniture, chattels, personal effects and jewellery, including the furniture in the Suburb P property.
2.
The Respondent retain as his own absolute property:
(a) his bank accounts, including funds held by him in the accounts in the names of Mr C and Mr E Bernard; and
(b) the furniture, chattels and personal effects and jewellery in his possession; and
(c) the motor vehicle; and
(d) the two transport businesses and associated licenses held in Island F; and
(e) any interest in any other property or assets in Island F he has an interest in.
3.
The Respondent transfer to the Applicant all his right title and interest in the property situated Gold Coast D Street, Suburb P in the State of Queensland, more particularly described as Lot … on RP … Parish of J County of K within thirty (30) days of the date of this Order.
4.
The Respondent shall, within thirty (30) days of the date of this Order, pay the Applicant the amount of $406,924.64.
5.
The Respondent is restrained and an injunction issue restraining him from accessing or in any way dealing with any funds held in any bank account operated by him and from disposing or dealing in any way with any other property owned by him in Australia until such time as the cash payment referred to in Clause (4) of this Order is made.
6.
Save as is otherwise provided for in this order, each party shall retain as his or her own property absolutely all property and/or financial resources of whatsoever description and wherever situate in respect of which that party is the legal owner and/or which property is in that party’s possession and/or under that party’s control as at the date of this Order.
7.
Each party sign all relevant documents and do all necessary things to give effect or to transfer the ownership of real property to the entitled party in accordance with this Order within seven (7) days of a written request to do so.
8.
Should either party fail to sign any documents necessary to implement this Order, a Registrar of the Court is appointed pursuant to s 106A(1) of the Family Law Act 1975 (Cth) to sign any such document in lieu of the non-signing party.
9.
Within 30 days of the date of this Order, the Respondent pay the Applicant’s costs of and incidental to the proceedings calculated on an indemnity basis and fixed in the amount of $55,324.34.
AND IT IS FURTHER ORDERED THAT
10.
The undertaking as to damages proffered by the Applicant on the 5 March 2015 is discharged.
AND IT IS FURTHER ORDERED THAT
11.
I direct that a Registrar of the Court forward the following documents to the Queensland Law Society, the Bar Association of Queensland and the Legal Services Commissioner, Queensland for their consideration:
(a) a copy of the Applicant’s affidavit filed 12 August 2016; and
(b) a copy of these Reasons for Judgment; and
(c) a copy of the Reasons for Judgment delivered 5 March 2015; and
(d) a copy of the Transcript of the proceedings on 5 March 2015; and
(e) a copy of the Transcript of the proceedings on 2 April 2015; and
(f) a copy of the Transcript of the proceedings on 12 September 2016; and
(g) a copy of the Transcript of the proceedings on 29 September 2016; and
(h) a copy of Exhibit 6, being correspondence dated 26 February 2015; and
(i) a copy of the written submissions prepared on behalf of the Applicant, Mr U and Ms N.
AND IT IS FURTHER ORDERED THAT
12.
All extant Applications are dismissed.
Note: The form of the order is subject to the entry of the order in the Court’s records.
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
In my view, the Applicant has established to the requisite level of satisfaction that the communication was for the purpose of the Respondent putting property in which the Applicant had at the very least a prima facie interest beyond her reach and, therefore, privilege does not attach to it. Given the circumstances – which have in fact seen the Respondent remove funds from the Commonwealth of Australia and place them beyond the reach of the Applicant in these proceedings – I considered that no public interest was served by allowing legal professional privilege to attach to the correspondence.Matters arising from the Applicant’s actions after separation It is also necessary that two additional matters relating to the Applicant’s conduct vis-à-vis items of property are the subject of comment. The first of these is her actions, in late February 2014, in withdrawing $18,000.00 from the parties’ Westpac account. I accept that she did so after discovering that the Respondent had withdrawn $75,000.00 from that account on 28 February 2014. I also accept that she did so in circumstances where she was concerned that she would not have the benefit of ongoing financial support from the Respondent (as had been the case before the parties’ January 2014 separation). Her fears were, in fact, well-founded as the Respondent in fact acted to remove from her the ability to access those credit facilities - which she had previously used - and also ceased to pay her funds which had (before separation) consistently been provided to her for her use in Australia. In such circumstances, I accept that the Applicant used these funds for her own support and I decline to add them back notionally the purpose of determining the total value of the property of the parties. The second issue is that, after separation, the Applicant sold the 1994 motor vehicle in her possession to the parties’ son for $200.00. She now has the use of a motor vehicle provided by her son-in-law. Whilst the sale of this 1994 motor vehicle is clearly the disposition of an asset after separation, the sum received for it is such that I am persuaded it is just and appropriate to take the Applicant’s receipt of $200.00 for it into account during my consideration of the relevant s 90SF(3) matters. Consequently, I decline to notionally add back the sum of $200.00 for the purpose of determining the total value of the property of the parties. In 1978, the parties purchased a house on Island F, which they later sold in 1998. In 1978, the parties purchased a store on Island F. The Applicant was responsible for establishing the business and conducting and supervising staff and other matters of a day to day nature in the operation of the business. They jointly operated this business until it was sold in 1989 prior to the parties’ relocation to Australia. In 1989, the parties purchased a number of real properties in Australia:a)on 6 March 1989: real property in Queensland Suburb O, Australia, in the Respondent’s sole name, with funds saved from the operation of the parties’ business. They continued to reside at this property until it was sold in March 1996; andb)on 17 March 1989: real property at Suburb Q for $170,000.00, in the Respondent’s sole name; the parties rented this property until its sale in May 1996 for $125,000.00; andc)in early 1989: real property at Suburb R in the Respondent’s sole name; this was sold in late 1991.