Ishtar & Hamad (No 3) [2025] FedCFamC2F 1134 (15 August 2025)

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. These are proceedings involving property allegations that were commenced on 12 July 2023 by the applicant wife ("the wife"). There were orders made by the Court on 21 February 2024 for the sale of a property, in which the wife had been residing, and which was partially owned by the respondent husband ("the husband"), after separation by the parties. It was alleged that the property was acquired in terms of the husband's interest with others and with assets obtained after separation, and in a document described as a financial questionnaire, the husband identified the circumstances in which he purchased the property with others and paid the deposit money. The mother, in her affidavit identifies that she thought the property was a rental property and did not know that it was a property, in fact, in which the husband had an interest.
2. Notwithstanding that Court orders were made on 21 February 2024 that required the payment of the proceeds of sale into a trust account to be held by the conveyancer, it appears that the husband was unaware of the significance of the order and the proceeds were not paid into a trust account. No steps were taken by practitioners to ensure compliance with the order It became apparent to the wife that the property has been sold when the only balance remaining was $8411.
3. The parties had been married in 2009, and there was an issue as to the potential date of separation. It was identified as 13 February 2016. Where the Court's orders have not been complied with and where the amount remaining from the sale of the property is de minimis, and there is no other property in respect of which orders could be made under s 79 of the Family Law Act 1975 (Cth) ("the Act"), against the husband, it is appropriate and just and equitable to exercise the Court's summary powers in relation to s 79 of the Act. Ms Jenkins submitted to the Court the error in doing so on the grounds that there was no such application before the Court and on the basis that the contributions must be weighed in accordance with the statutory criteria, identifying each of the relevant factors in order to determine what, if any, alteration of property interest would be just and equitable.
4. In circumstances where there was a relationship of five years and there were contributions as identified in the wife's affidavit filed 21 March 2025 that could not be described as negligible, it is unarguable that there would have been a property order made in relation to the funds held in trust of an amount well in excess of the $8411. The husband identified that he had used the funds to pay out his creditors. The Court made an injunction freezing the remaining balance of the funds. When the matter came before the Court today, initially there was a request on behalf of the wife for the proceedings to be dismissed and the injunction dissolved.
5. The Court initially made such a proposed order, but under the misapprehension as to the status of the property. It is not necessary to descend into the reasons for that misunderstanding, suffice to say the orders that the Court had proposed to make, were not entered up, and the Court, now understanding the correct position between the parties, is satisfied that there is no reasonably arguable case open to the husband to maintain any assertion that there should be anything other than an alteration of the property interests of the parties by a transfer of the remaining funds in the amount of $8411, together with whatever interest is accrued, to the wife.
6. The Court has taken into account the caution that must be exercised in relation to the summary powers and the clarity that there is no arguable case for any other order in this matter. The Court has also taken into account the principles in s 95 and the principles in s43 of the Act. Whilst it is correct, as Ms Jenkins has identified, that there is no formal application before the Court, it was crystal clear in the earlier orders that had been made that these proceeds had been frozen as a result of the sale proceeds being depleted without compliance with the Court's earlier orders by the husband and the Court may decide the matter today.
7. It is a most unfortunate position that State law does not ensure that caveats can be lodged to protect property interests by spouses without the risk of applications to remove the same. Why, in the circumstance of this case, there was ever proposed an order for the funds to be paid into the trust account of a conveyancer is also not apparent to the Court. Solicitors have trust accounts and company agents, who are not legal practitioners, do not have such a trust account.
8. But more than that, when Court orders are made relating to the sale proceeds, all parties involved in a potential sale should have been notified of the terms of the orders and the restraint that was in place. It is unnecessary for the Court to descend into the circumstances why that order was made, but the Court is satisfied that there is no reasonably arguable case open that there could be any other result in these proceedings than an order under s 79 of the Act, transferring the balance of the funds in an ANZ account to the wife.
9. The Court has taken into account the information identified in the wife's affidavit filed 21 March 2025 and in the wife's financial statement filed 12 July 2023, as well as the financial statement of the husband filed 22 December 2023, husband's response to the final orders filed 22 December 2023, and as earlier identified, the father's response to the financial questionnaire filed 7 November 2023. This is not a case that should be allowed to continue before the Courts, from the viewpoint of the de minimus amount out of property that remains as a result of the breach of the Court's orders, and the proceeding should not be permitted to continue as contested proceedings.
10. The Court is satisfied that there is no proper basis for anything other than the order that the Court has made, and is of the view that the husband was well on notice that the Court may make such an order as a result of the freezing of the funds and the orders that had earlier been made, anticipating an opportunity to pursue other third parties if the wife chose to do so. The Court does not, in these circumstances, regard the husband as not having had a fair opportunity, if he so wished to identify a reasonably arguable case to dispute the proposed order by the Court for the transfer of the funds that had been frozen to the wife.
11. The Court does not propose to permit a waste of Court time or resources or incur unnecessary cost when there are no real arguable issues and where it is clearly just and equitable to require the small transfer of the balance of the property that was sold to the wife. This is not a case where it is necessary for the Court to make orders for further affidavits and submissions in respect of contributions and the statutory process under s 79 as the Court is satisfied tit is clearly unarguable that the result should be one where the limited proceeds now remaining should be transferred to the wife. The Court is satisfied such an order is appropriate under s 79 and is just and equitable.
12. It is for these reasons the Court makes the above orders.

I certify that the preceding twelve (12) numbered paragraphs are a true copy of the Ex-Tempore Reasons for Judgment of Judge Street.