FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Yonjan & Satyal [2023] FedCFamC2F 419
File number(s): MLC 11011 of 2020 Judgment of: JUDGE O'SHANNESSY Date of judgment: 30 March 2023 Catchwords: FAMILY LAW – final property orders by consent – ex tempore reasons – where one party has a litigation guardian – where substantial evidence remained in dispute – where matter would have exceeded four or five final hearing days. Legislation: Family Law Act 1975 (Cth), ss 90SF, 90SM
Federal Circuit and Family Court of Australia (Family Law) Rules 2021, r 3.12
Cases cited: Black & Kellner (1992) 15 Fam LR 343.
Browne v Green [1999] FamCA 1483.
Chang and Su [2002] FamCA 156.
Hickey and Hickey and the Attorney-General [2003] FamCA 395; (2003) FLC 93-14.
Keskin & Keskin and Anor [2019] FamCAFC 236; (2019) FLC 93-932.
Kowaliw and Kowaliw [1981] FamCA 70; (1981) FLC 91-092.
Parshen & Parshen (1996) FLC 92-720 at 83,665.
Weir v Weir (1992) 16 Fam LR 154.
Division: Division 2 Family Law Number of paragraphs: 37 Date of hearing: 30 March 2023 Place: Melbourne Counsel for the Applicant: Mr P. Croft Solicitor for the Applicant: Hope Earle Lawyers Counsel for the Respondent: Mr C. Arnold Solicitor for the Respondent: Hiways Lawyers ORDERS
MLC 11011 of 2020 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MS YONJAN
Applicant
AND: MR SATYAL
Respondent
ORDER MADE BY:
JUDGE O'SHANNESSY
DATE OF ORDER:
30 MARCH 2023
THE COURT ORDERS BY CONSENT THAT:
1.That the Respondent's solicitors forthwith serve copy of these orders upon G Law Firm, and this Orders serves as irrevocable authority to G Law Firm to disburse the trust funds as follows: -
(a)First, the sum of $189,533.00 to the Respondent via his solicitors Hiway Lawyers; and
(b)Second, pay the balance remaining to the Applicant via her solicitors Hope Earle.
NAB Offset Account ending #...92
2.That the parties do all acts and things to unfreeze the Respondent's National Australian Bank Offset Account (BSB: …91 Account no: …92).
3.The Respondent's solicitors be permitted to serve a copy of these Orders upon the National Australian Bank, and paragraph 2 herein shall be deemed as the parties' irrevocable authority to the National Australian Bank to forthwith, unfreeze the Respondent's National Australian Bank Offset Account (BSB: …91 Account no: …92); and disburse all balance in this account to an account nominated by the Respondent, and thereafter, close the NAB Offset Account ending #...92.
CommSec Shares Portfolio Accounts #...37 and #...26
4.That within 14 days from the date of the Orders, the Applicant and Respondent shall do all acts and things and sign all documents as may be necessary to liquidate all shares in their respective CommSec Accounts #...37 and #...26 (“the Sale”) and provide to each other via their solicitors final statements of such accounts .
5.Upon completion of the Sale, the proceeds of sale be disbursed in the following priority: -
(a)First, in payment of costs, commission expenses and of the…
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CaseChat Overview and Summary
The court's reasoning focused on the necessity of a consent order due to the complexity of the case, which would have required an extensive final hearing. Judge O'Shannessy noted that substantial evidence remained in dispute, making it impractical to proceed with a conventional hearing. The court acknowledged the Applicant's litigation guardian's role in ensuring the fairness and appropriateness of the proposed division. Ultimately, the court approved the consent orders that were presented, finding them to be in the best interest of both parties, especially considering the potential duration and costs associated with a full trial.
The court's orders mandated the disbursement of funds from specific accounts, the liquidation of shares, and the division of proceeds according to a predetermined priority. Additionally, the orders outlined the responsibilities for capital gains tax and the allocation of personal property. The court also addressed the ongoing liabilities and responsibilities of each party, ensuring clarity in their respective financial obligations post-divorce. The final orders were designed to provide a clear and practical resolution to the property dispute, while also considering the unique circumstances of the Applicant, as represented by her litigation guardian.
Orders
Orders of the court
MLC 11011 of 2020
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN:
MS YONJAN
Applicant
AND:
MR SATYAL
Respondent
ORDER MADE BY:
JUDGE O'SHANNESSY
DATE OF ORDER:
30 MARCH 2023
THE COURT ORDERS BY CONSENT THAT:
1. That the Respondent's solicitors forthwith serve copy of these orders upon G Law Firm, and this Orders serves as irrevocable authority to G Law Firm to disburse the trust funds as follows: -
(a) First, the sum of $189,533.00 to the Respondent via his solicitors Hiway Lawyers; and
(b) Second, pay the balance remaining to the Applicant via her solicitors Hope Earle.
NAB Offset Account ending #...92
2. That the parties do all acts and things to unfreeze the Respondent's National Australian Bank Offset Account (BSB: …91 Account no: …92).
3. The Respondent's solicitors be permitted to serve a copy of these Orders upon the National Australian Bank, and paragraph 2 herein shall be deemed as the parties' irrevocable authority to the National Australian Bank to forthwith, unfreeze the Respondent's National Australian Bank Offset Account (BSB: …91 Account no: …92); and disburse all balance in this account to an account nominated by the Respondent, and thereafter, close the NAB Offset Account ending #...92.
CommSec Shares Portfolio Accounts #...37 and #...26
4. That within 14 days from the date of the Orders, the Applicant and Respondent shall do all acts and things and sign all documents as may be necessary to liquidate all shares in their respective CommSec Accounts #...37 and #...26 (“the Sale”) and provide to each other via their solicitors final statements of such accounts .
5. Upon completion of the Sale, the proceeds of sale be disbursed in the following priority: -
(a) First, in payment of costs, commission expenses and of the sale of the CommSec shares;
(b) Second, to pay into the Respondent’s solicitor’s trust account the amount sufficient to pay the estimated Capital Gains Tax (CGT) for account #...37 and for such amount to be held and then paid by in accordance with paragraph 6 herein;
(c) Thirdly, to pay into the Applicant’s solicitor’s trust account the amount sufficient to pay the estimated Capital Gains Tax (CGT) for account #...26 and for such amount to be held and then paid by in accordance with paragraph 7 herein;
(d) Fourthly 55% of the balance to the Applicant; and
(e) Fifthly, the remaining balance to the Respondent.
6. For the purposes of the funds held on trust for CGT pursuant to paragraph 5 herein, the following applies: -
(a) The Respondent will appoint an accountant to provide an estimate of the CGT payable by the Respondent as a result of sale of his shares in the CommSec Portfolio account #...37 as if that capital gain were income earned after income from all other sources and provide such estimate to the Applicant via her solicitors;
(b) The amount estimated for CGT by the account will be held in the Respondent’s solicitor’s trust account pending compliance with paragraph 5(c) and paragraph 6(d) below;
(c) The Respondent will do all things necessary to have his Tax Returns for the financial year in which the shares are sold, completed as soon as practicable by the accountant nominated by the Respondent;
(d) Upon the Respondent’s Tax Return being completed for the financial year in which the shares are sold, the Respondent will provide a copy of his Tax return including the CGT calculated as owing by him to the other party and any tax assessment to the Applicant’s solicitor and this paragraph will authorise the Respondent’s solicitor to pay the funds held in trust as follows: -
(i) The amount owing by the Respondent for Capital Gains Tax to the Australian Taxation Office; and
(ii) To divide any balance as to 55% to the Applicant and the balance to the Respondent.
7. For the purposes of the funds held on trust for CGT pursuant to paragraph 4 herein, the following applies: -
(a) The Applicant will appoint an accountant to provide an estimate of the CGT payable by the Applicant as a result of sale of her shares in the CommSec Portfolio account #...26 as if that capital gain were income earned after income from all other sources and provide such estimate to the Applicant via her solicitors;
(b) The amount estimated for CGT by the accountant will be held in the Applicant’s solicitor’s trust account pending compliance with paragraph 6(c) and paragraph 7(d) below;
(c) The Applicant will do all things necessary to have her Tax Returns for the financial year in which the shares are sold, completed as soon as practicable by the accountant nominated by the Applicant;
(d) Upon the Applicant’s Tax Return being completed for the financial year in which the shares are sold, the Applicant will provide a copy of her Tax return including the CGT calculated as owing by her to the other party and any tax assessment to the Respondent’s solicitor and this paragraph will authorise the Applicants solicitor to pay the funds held in trust as follows: -
(i) The amount owing by the Respondent for Capital Gains Tax to the Australian Taxation Office; and
(ii) To divide any balance as to 55% to the Applicant and the balance to the Respondent.
7A. The parties do all acts and things to sign all documents necessary to ensure the Applicant has sole control and responsibility for:
(a) Company B phone number …; and
(b) C’s Instagram Account.
Others
8. That save and except as set out in these orders, as and from the date of these Orders, the Respondent shall retain for his sole enjoyment and benefit, to the exclusion of the Applicant:
(a) His cryptocurrency;
(b) Funds in his bank accounts and investments held in his name;
(c) Personal items and chattels currently in his possession;
(d) His superannuation entitlements; and
(e) All other property in his possession as at the date of these Orders.
9. That save and except as set out in these orders, as and from the date of these Orders, the Applicant shall otherwise retain for her sole enjoyment and benefit, to the exclusion of the Respondent: -
(a) Funds in her bank accounts and investments held in her name;
(b) Personal items and chattels currently in her possession; and
(c) All other property in her possession as at the date of these Orders.
10. Unless otherwise specified, the Respondent be solely liable for and forever indemnify the Applicant with respect to any debts to which he is liable including but not limited to:
(a) Any taxation liability; and
(b) Any personal loan or credit cards in his name.
11. Unless otherwise specified, the Applicant be solely liable for and forever indemnify the Respondent with respect to any debts in which she is liable, including but not limited to:
(a) Any taxation liability; and
(b) Any personal loan or credit cards in her name.
12. The save and except as set out in these orders as and from the date of these Orders, each party shall be solely responsible for any liability in his/her own name and each party shall indemnify the other party and keep the other party indemnified in respect of any liability in his or her respective names arising from or in relation to any and all assets to which they are respectively entitled to pursuant to these Orders.
13. Unless otherwise specified in these Orders, and save for the purpose of enforcing any payment due under any subsequent Orders:
(a) each party be solely entitled to the exclusion of the other to all other property (including choses-in-action) in the possession of such party as at the current date;
(b) monies standing to the credit of either party in any bank account are to become the property of the party in whose name the account is registered, with any accounts held jointly to be divided equally between the parties and thereafter closed;
(c) each party forego any claims they may have to superannuation benefits belonging to or earned by the other;
(d) insurance policies are the sole property of the beneficiary named thereon; and
(e) any joint tenancy of the parties in any real or personal estate is hereby expressly severed.
14. By this order the Litigation guardian is permitted and expressly authorised to sign all such documents and do all such acts and things as may be necessary on behalf of the Applicant to give effect to the preceding Orders.
15. The parties do all acts and things necessary including signing all documents to give full force and effect to the provision of these Orders and in the event that either party refuses or neglects to execute a deed and/or instrument in compliance with these Orders, the Registrar or Deputy Registrar of the Federal Circuit and Family Court of Australia at Melbourne is hereby appointed pursuant to Section 106A of the Family Law Act 1975 (Cth) to execute all deeds and/or instruments in the name of the Husband or the Wife and do all acts and things to give validity and operation to the Deed and/or Instrument.
16. The requesting party be at liberty to apply for costs when submitting such an affidavit to the Registrar.
17. That on compliance with these orders the Applicant's litigation guardian be discharged.
18. That all extant property applications be otherwise 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).
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.
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
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