Beulen & Beulen (No 2) [2025] FedCFamC1F 430 (3 June 2025)

BY CONSENT AND PENDING FURTHER ORDER THE COURT ORDERS THAT:

1. Within 7 days of these Orders, the Husband in his capacity as Director of the trustee company shall do all things and sign all documents necessary to appoint Mr Q of R Company as Trustee for Sale of P Street ("the Trustee").
2. The Husband in his capacity as Director of the trustee company shall instruct the Trustee at the time of their appointment that:

(a) S Pty Ltd and/or another such other agent as selected by the Trustee for Sale shall be the agent to have conduct of the sale ("the selling agent"), with the costs of and incidental to such appointment to be paid from the sale proceeds of P Street;

(b) An Agency Agreement with the selling agent has been signed on 10 February 2025 and provide a copy of that Agency Agreement to the Trustee;

(c) T Company have issued a Single Expert Valuation Report for P Street dated 19 September 2024 and provide a copy of that Report to the Trustee; and

(d) AA Firm shall be the conveyancer with carriage of the sale ("the conveyancer"), with the costs of and incidental to such appointment to be paid from the sale proceeds of P Street.

1. The Trustee shall have the sole power to do the following:

(a) Negotiate the commission rate with the selling agent.

(b) Sign any further agency agreement with the selling agent as the Trustee considers may be appropriate.

(c) Determine the method of sale, listing price and reserve price for P Street in consultation with the selling agent and/or with the assistance of a formal valuation if required by the Trustee.

(d) Undertake any minor maintenance or repairs as recommended by the selling agent with the costs to be met from the sale proceeds.

(e) Do all other things necessary to sell P Street for the best price reasonably obtainable.

1. The Husband shall co-operate in every way with the agent and Trustee including (without limiting the generality of the foregoing):

(a) Making the key available to the selling agent.

(b) Signing all documents requested to sell P Street.

(c) Executing a contract for sale in the form prepared by the solicitors having the conduct of the sale and any other documents required to effect the settlement of P Street.

(d) Allowing inspection of P Street at all times as requested by the selling agent.

(e) Doing or saying nothing to hinder or prevent a sale being effected.

1. On the settlement of the sale of P Street, the Trustee and the Husband in his capacity as Director of the trustee company (as necessary) shall do all things and sign all documents necessary to distribute the proceeds of sale be paid in the following manner and priority:

(a) Payment required to discharge the Mortgage ... secured on the title to P Street held by Westpac, being Westpac loan account with BSB ... Account Number ...01;

(b) Payment of conveyancing legal costs relating to the sale including but not limited to conveyancer's professional fees, government lodgment fees;

(c) Payment of the selling agent's commission and any advertising expenses associated with the sale;

(d) Payment of any auctioneer's fees if applicable;

(e) In payment as follows:

(i) To the Wife, to be paid to the Barkus Doolan Winning Trust Account, the sum of $400,000 to be characterised at trial;

(ii) To the Husband, as he directs in writing, in the sum of $400,000 to be characterised at trial;

(iii) In the event sale proceeds are not equivalent to or more than $800,000 in value once payments are made pursuant to Order 8(e)(i) to 8(e)(ii). then the Husband and Wife will share equally in the remaining sale proceeds;

(iv) The balance sale proceeds (if any) on settlement to the joint Westpac redraw facility having the number ending #...85.

1. The apportionment of any tax payable by the Husband or the Wife as a result of the payments to be made pursuant to Order 8(e)(i) to 8(e)(ii) is to be determined at hearing.
2. Upon the sale of P Street, the parties will do all acts, things and sign all documents necessary to secure new premises for O Pty Ltd to operate from. In the event the parties are unable to agree upon a suitable premises in accordance with this order then:

(a) No later than 28 days from the making of these orders, the Husband will provide to the Wife a list of three premises for O Pty Ltd to operate from;

(b) No later than 14 days from the making of these orders, the Wife will select one of the three options nominated by the Husband;

(c) Then upon the exchange of contracts to sell P Street, the parties will do all acts, things and sign all documents necessary to secure a premise for O Pty Ltd, including signing a lease, to rent the property nominated in accordance with Order 10(b) herein.

1. The Orders made 3 December 2024 be varied as follows:

(a) Insert a new Order 10(f): 'Payment to the Wife, to be paid to the Barkus Doolan Winning Trust Account, the sum of $409,940 to be characterised at trial; and

(b) Current Order 10(f) be amended to be new Order 10(g): 'Payment of the balance remaining thereafter on settlement to the joint Westpac redraw facility having the number ending #...85'.

And the Court notes that the Wife will direct the sum to be paid to the Barkus Doolan Winning Trust Account pursuant to Order 11(a), to forthwith be paid to U Company in accordance with the terms of her agreement.

1. Within 7 days the Husband provide to the Wife by way of disclosure copies of all documents and information listed in the letter from Barkus Doolan Winning to Barker Evans dated 30 May 2025, a copy of which is attached and marked "A".

(a) "The Wife" means Ms Beulen born in 1973.

(b) "The Husband" means Mr Beulen born in 1964.

(c) "The parties" means the Wife and Husband collectively.

(d) "P Street" means the property situated at and known as P Street, Suburb Q in the state of New South Wales being folio identifier ..., registered in the name of W Pty Ltd.

(e) "W Pty Ltd" and "the trustee company" means the company W Pty Ltd ACN ... of which the Husband is the sole director and shareholder.

(f) "W Capital Trust" means the discretionary trust of which W Pty Ltd ... is the trustee and the Husband is the guardian and appointor.

1. The parties agree that Capital Gains Tax ("CGT") will arise on the sale of P Street which will need to be paid. It is anticipated that expert advice with respect to tax issues will be required by the parties following the sale and/or release of the single expert valuation reports for the company and trusts and prior to the final hearing.

1. The Husband sought payment of an inter-entity loan between the W Capital Trust (as beneficial owner of P Street) and O Pty Ltd from the sale proceeds of P Street however, the issue of this loan has been deferred for determination at final hearing.

1. Notations A, B and C are made by consent between the parties.

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.

IT IS NOTED that publication of this judgment by this Court under a pseudonym has been approved pursuant to subsection 114Q(2) of the Family Law Act 1975 (Cth).

1. In this matter, the parties have resolved between them a number of orders by consent, dealing with various matters to do with the sale of the P Street property. I will make those orders by consent at the conclusion of these reasons. Additionally, the parties and independent children's lawyer have agreed to orders with respect to witnesses for the final hearing in the parenting aspect of the matter, and I will make those directions at the conclusion of the matter.
2. The issues that remain for determination are firstly whether or not there should be a payment to the wife from the proceeds of sale of the Suburb J property in the sum of $409,940 for litigation funding, as she seeks.
3. The husband's primary position is to oppose any variation to 3 December 2024 orders for distribution of the sale proceeds from Suburb J property. If I determine to vary the orders of 3 December 2024, the husband seeks that each party receive $350,000, rather than the orders promoted by the wife. He seeks payment to O Pty Ltd from the proceeds of sale of the P Street property in the amount of $171,838 or such other sum as may be required at the date of the settlement.
4. Next, there is an issue with respect to disclosure. Disclosure has been an ongoing issue in this matter.
5. The orders that I am being invited to make by consent provide each of the parties with $400,000 from the sale of the P Street property. I note that property has not yet been sold, nor have steps been taken for the sale. The orders I will be making by consent today provide for a trustee on the sale, the husband to secure new premises for O Proprietary Limited, and various other matters.
6. The parties have each provided me with extensive outlines of case containing submissions, and importantly, a list of the documents relied on by each of them in these proceedings.
7. Looking firstly at the application by the wife with respect to litigation funding. The wife argues that she has need of $409,940 to meet the costs of the upcoming litigation, noting the matter has been set down for final hearing for seven days in August 2025.
8. She seeks that payment be made from the proceeds of sale of the Suburb J property. The sale of that property was ordered by me as part of the suite of orders made on 3 December 2024 following an interim hearing. She seeks that the balance of the proceeds after payment to her go into the joint account. I note various expenses are met from the joint account such as the mortgage on the Suburb C property, other expenses on Suburb C, school fees, private health, insurance and various other matters.
9. Prior to the judgment of 3 December 2024, those expenses as outlined in those reasons, were met by the husband. There were arrears relating to the mortgage, and other matters. Those are expenses he is no longer required to meet, other than from a joint account into which various funds placed.
10. On 1 November 2024, the wife obtained litigation funding with a limit up to $500,000, and in January 2025 she has increased that limit to $600,000. She has repaid to her parents $339,000, which they lent to her for funding the litigation. On the evidence available, there is no dispute from the husband that the funds were lent to her by her parents. What he disputes is the necessity for repayment of those funds now. The wife makes clear that those moneys are to fund the deposit on a unit in a retirement village her parents wished buy. The retirement village is under construction.
11. The husband in his affidavit makes various comments about the wife's parents' financial position from his knowledge of that during the relationship. There does not appear to be any evidence about the retirement village unit. I accept that it was reasonable for the wife to repay to her parents the sum that she borrowed from them so that they had those funds available to make the deposit. Particularly in circumstances where there is no dispute those funds were owed.
12. The wife's affidavit sets out the costs anticipated by her for senior counsel and solicitors preparation and hearing costs by reference to cost notices dated 14 April 2025 at a total of $407,900. The wife argues that without funds she cannot meet the legal expenses, and will not be able to retain her current solicitors and counsel for the hearing in August. In addition to this litigation the parties have had extensive litigation in Fair Work, and the husband has additionally had criminal matters that he has been engaged in.
13. It is not clear to me whether the wife has been required to obtain legal representation with respect to any criminal matters. In any event, the wife says that she has some $26,655 left as at 10 April 2025 from the litigation funding she had obtained. The evidence of the wife is that there are no other funds from which she can meet those expenses.
14. Orders for funding can be made available pursuant to section 117 (2), or section 79 as the wife seeks. The case law makes it clear that there are different sources of power available in order to make an order for either litigation funding or partial property settlement. The court holds the discretion as to whether to exercise the power in either of those instances. In terms of overall considerations, the court needs to be satisfied that making such orders are just and equitable in the circumstances.
15. The court is required to consider Stanford matters, that is, it is not to be assumed that one or other party has the right to have property divided between them. That applies whether the order is for partial property payment or for litigation funding. In this instance, both parties seek from their outlines, orders for an adjustment of the property of the parties. I am satisfied with respect to Stanford.
16. In the circumstances of this matter, there are identified through Strahan and the various cases following, a number of principles to be taken into account: whether one party has the monopoly of access to financial resources, such that they have an advantage in the litigation over the other party to the other party's disadvantage; the interim relief provided would not defeat the other party's claim or legitimate expectations at a final hearing; if required whether it would be possible for a clawback of the funds that are provided.
17. In terms of background to the financial matters, as was canvassed in the judgment of 3 December 2024 the husband had access to some $700,000 from the sale of shares post-separation. He tells the court that no money was retained for capital gains tax, and he has fully expended that amount. I refer to this amount in particular, noting that there are various positions between the parties with respect to the entities and the like. There are three trusts which own five properties, and the income from those properties, controlled by the husband. He controls O Proprietary Limited, which is trading as V Company, that being the entity through which the wife is employed as CEO.
18. The husband holds the property at Suburb K in his sole name. He and the wife jointly own the property at Suburb C.
19. The shares were sold by the husband post-separation. I had understood the sale to be over a short period at the beginning of 2024, but having looked at the material now filed by the husband, I am not sure if it goes back to the end of 2023. Such is the way that he has described matters in his affidavit it is extremely difficult to tell.
20. In any event, the husband had access to some $700,000. As was made clear in the judgment of 3 December 2024, there was an issue about his transparency on use of those funds. He has annexed to his affidavit filed in these proceedings, a spreadsheet summary which sets out expenditure over a particular period, end of 2023 through to 2024, which covers the period for use of those funds. The summary is disclosed by him in a letter from his solicitor dated 16 May 2025.
21. Annexed also to the husband's affidavit are other letters from his solicitors containing various pieces of financial information, bank statements, and the like. In my view, this exemplifies the problems complained of with respect to the husband's disclosure, and the difficulties for the wife in understanding the party's financial positions. Whatever way one looks at it, the husband's had the use of those funds. The wife is waiting for the detail of the use of those funds to happen. She should not be waiting until the final hearing.
22. Despite these difficulties the evidence makes clear the difference in the financial positions between the parties. Each of them will have access to $400,000 from the sale of the P Street property. Those funds will not be available prior to the trial set down in August, as no steps have yet been taken for sale. If the funds became available, it would be so close to the date of the hearing that it would provide little assistance to the wife to fund the litigation.
23. The husband's financial statement filed 10 July 2024 refers to his estimated assets as being $9,601,556, estimated liabilities close to $2.8 million and $1.5 in superannuation. The wife has a similar amount of superannuation. Her financial statement of 29 May 2025 discloses total property of $4,764,023. The parties have a joint interest in the Suburb C property, which the wife seeks to retain. The wife additionally has Z Street, Suburb N, and $30,000 in shares held in a share portfolio. The total liabilities of the wife amount to $1,915,752.
24. Valuations have not yet been completed. The party's net asset pool, leaving aside superannuation, is in the order of $9.6 million. Were the wife to sell the Suburb N property she would have the difficulties of delaying in funds from the sale, and capital gains tax would be required. The hearing is imminent and that would not satisfy the issues for the wife in terms of need for funding for litigation.
25. The proceeds from sale of Suburb J are available. I accept that the wife requires assistance with her litigation funding. The husband seeks an adjustment to the wife of 25 per cent. The wife seeks an adjustment to herself of 60 per cent, and to retain the Suburb C property. On the net pool available, there is no issue created by the payment to the wife at this point of $400,000 from the proceeds of sale of Suburb J.
26. The basis upon which that payment is to be made can be determined at the hearing and I propose making orders in that vein. I am satisfied that is the fairest way to deal with the provision of funds on an interim basis, taking into account the competing positions of the parties. The husband's alternate position seeks that were I to alter the orders of 3 December 2024 as I propose doing, rather than give the wife the sum referred to each should receive $350,000.
27. He puts this on the basis it would ensure a level playing field. The husband, as I have outlined, has control of various of the assets. He has had access to significant funds. He has an ability to raise funds against the Suburb K property, that being in his sole name. He could sell Motor Vehicle 1 or his recreational vehicle, as referred to in 3 December 2024 judgment. I cannot see any evidence that he has taken steps to do so.
28. The deposit of the residual amount from the sale proceeds following payment to the wife into the joint account ensures a significant buffer for the meeting of ongoing expenses. Were the husband's approach taken, that buffer would be seriously depleted. It would use the entirety of the Suburb J proceeds of sale. It was anticipated those proceeds would top up that account in the judgment of 3 December 2024.
29. Otherwise the husband outlines the problems of payment of the funds from the proceeds of sale to the wife, which position seems in conflict. In his evidence he points to $234,867 standing in the joint account. That account is used for the payment of the expenses including the mortgage and the other expenses on Suburb C, health insurance, school fees, those kinds of matters.
30. The husband estimates that the monthly expenses drawn from that account are about $31,000. In his submissions opposing provision of the funds to the wife he anticipated $370,000 net from the sale of Suburb J after a discharge of the mortgage, capital gains tax set aside, sale costs paid and the like. That raised the issue of whether there is a mortgage to be paid on that property. The wife's evidence is that there is not. It seems remarkable that the husband, despite the evidence of the wife, and notice from Westpac that they hold no security against the Suburb J property, it was asserted by the husband that a mortgage or loan was required to be paid of some $201,659. It does not appear that is the case. There is a loan, but it is not secured on the Suburb J property. It does not appear that it is required to be paid at the time that sale is settled.
31. The husband has argued that payment to the wife of the $409,940 would allow a minimal amount to meet the family expenses thereafter in the lead up to the hearing and presumably over any period awaiting a decision. That will not be a problem on the basis that $201,659 does not need to be paid on a mortgage or loan. Additionally I am not ordering payment of any residual amount to the husband, so there will be no shortfall.
32. The loan the husband argues should be repaid is from W Capital Trust to O Proprietary Limited of some $171,838. I accept that it needs to be paid, but there is no evidence that is required on any urgent or immediate basis. The matter has been listed for final hearing and this matter can be dealt with as part of the final hearing. The valuations will be available. There will be a better understanding of the various entities, of the various debts, and I do not propose making an order for payment of that at this point.
33. There is then the issue of disclosure. I have already referred to concerns about disclosure around the expenditure of $700,000 that had not been disclosed at the time of the December hearing. Various documents have now been disclosed by the husband, as I read his affidavit. The wife complains disclosure has not been made in full. There have been previous orders 8 October 2024, and 17 December 2024 requiring disclosure, including of specific matters like the husband's travel expenditure. I note there have been queries from the single expert with respect to the husband's travel expenditure. It is something that needs to be addressed.
34. At the hearing in December 2024, the husband sought to tender an Excel spreadsheet summarising sale and expenditure of shareholdings from 28 August 2023 to 17 March 2024. That application was refused. I understand that to be the document now annexed to his affidavit.
35. There is no explanation in his affidavit about why it would take more than five months for that summary document, apparently available at the hearing in December, to be provided to the other side. Similarly, with respect to parenting matters, the wife had sought a report relied on by the husband in criminal proceedings with respect to his mental health be disclosed to her. It was not provided for three months after that initial request, as I see the material.
36. The husband has ongoing obligations of disclosure, as of course does the wife. Litigation needs to be conducted in an orderly manner so that it is just and equitable for both parties. The obligations of disclosure enable parties to understand the case being made against them, to be able to properly assess the strengths and weaknesses of their case, and to make rational decisions with respect to the litigation. This is to the benefit of the parties and ultimately to the benefit of the taxpayers of Australia in terms of the way litigation is conducted.
37. The hearing is listed in August. In my view, that necessitates the orders sought by the wife with respect to disclosure in order for this matter to be ready, in a timely manner, and to enable the parties to make proper assessments of the strengths and weaknesses of their case.

I certify that the preceding thirty-seven (37) numbered paragraphs are a true copy of the ex tempore Reasons for Judgment of the Honourable Justice Boyle.