Ishtar & Hamad (No 2) [2025] FedCFamC2F 714 (20 May 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 proceedings were originally commenced on 12 July 2023. The applicant wife ("the wife") and respondent husband ("the husband") were married in 2009 and separated on a final basis on 14 February 2016. There are two children from the marriage.
2. These proceedings were fixed for a final property hearing commencing yesterday. At the commencement of the hearing yesterday, it emerged that the matrimonial property, which was the only substantial asset for the purpose of the property pool, had been sold in October 2024 and that the only proceeds of sale still available was an amount of $8,411 in an ANZ account.
3. A registrar of this Court on 21 February 2024 made orders by consent that relevantly included order 20 paragraph (e) which is as follows:

20(e). The balance to be held on trust in the Conveyancer's trust account pending further Order.

1. At this stage in the proceedings, it is apparent that there were representatives for both the wife and the husband. The terms of the order 20(e) are ones in respect of which at the commencement of the hearing yesterday the husband indicated he was unaware of the restraint, and it appears no notification was given to any alleged conveyancer of any obligation to hold funds in trust. It appears no other steps were taken to ensure preservation of the property pool for the benefit of the parties.
2. This is another tragic case where, because of inadequate Commonwealth and State legislation, the property interests of the wife have been able to be dealt with and effectively destroyed because there is no recognised caveat in terms of a caveatable interest that supports s79 of the Family Law Act 1975 (Cth) ("the Act") or property preservation in de facto proceedings.
3. It is possible for the Court to grant an anti-suit injunction preventing the removal of a caveat and it is possible for the Court to have an injunction sought to be registered. However, the ordinary process to protect the interests of lodging a caveat are not available, and the wife in the present proceedings has lost the benefit of the proceeds of sale, in part due to the inadequate Commonwealth and State legislation to protect property interests of spouses and de facto relationships in property proceedings. Urgent legislation is needed to rectify this most unsatisfactory position.
4. The Court does not propose to say more about the unusual order that was made, being order 20(e) on 21 February 2024, or the adequacy or inadequacy of the steps that were taken by those acting on behalf of the wife on that occasion, suffice to say that this Court is placed in a position where there is a paltry amount available for the purpose of the application under s 79 of the Act.
5. The Court permitted the matter to be stood over to today for the purpose of taking evidence, subject to the issuing of a certificate under s 128 of the Evidence Act 1995 (NSW) ("the Evidence Act"), which the Court did, as to what happened to the proceeds. The husband cooperated with the Court in that regard. In respect of that evidence the s 128 of the Evidence Act certificate will be issued in due course. It was recorded on a confidential transcript in order to ensure that the husband has the benefit of the protections imposed by the certificate.
6. The purpose of identifying what happened to those proceeds was in part to facilitate identifying what, if any, assets might be able to be clawed back under s 106B of the Act by the wife. Whether there is any real prospect of doing so, or whether the relevant persons are people of straw, is a matter the Court cannot determine at this stage. It is a tragedy that the property pool was not able to be properly preserved for the benefit of the parties, particularly taking into account that this Court also has jurisdiction under Part VIIIAA of the Act to effect the entitlements of alleged creditors where the Court is satisfied it is appropriate to do so and again urgent amendment is required to extend that part to de facto relationships.
7. Nonetheless, the position is that the Court has now adjourned these property proceedings to give the applicant an opportunity to consider and formulate, if appropriate, any purported claim under s 106B of the Act against alleged recipients of the proceeds of the property that was sold in October 2024. The Court identified that if, on the next occasion, no such parties have been joined, the proceedings would continue as property proceedings and the Court will dispose of the only property that appears to be available, being the $8,411.
8. The Court notes that the father did identify another account relating to his business in which there was a very small amount of funds which appear to be necessary for his business and living arrangements. The Court notes it was also identified there is a Commonwealth Bank account containing the sum of $2,000. The Court was also informed that there is a second ANZ account in respect of which an ANZ account number was given to the Court. The husband informed the Court that the second ANZ account has been closed, and that may well be the case. However, given the history of the matter, the Court is satisfied that it is appropriate to grant a freezing order in respect of that account if it has any funds in it.
9. 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.