Federal Circuit and Family Court of Australia
(DIVISION 1)

Beulen & Beulen [2024] FedCFamC1F 837 
File number(s):	SYC 8513 of 2023	
		
Judgment of:	BOYLE J	
		
Date of judgment:	3 December 2024	
		
Catchwords:	FAMILY LAW – PROPERTY – Interim Hearing – Where an order was made by consent restraining the husband from terminating the employment of the wife in an entity owned by him – Where the husband seeks to discharge that order – Where the parties are engaged in proceedings in the Fair Work Commission – Where the parties agree to the sale of a property – Where there is dispute as to the application of the proceeds of sale and how ongoing expenses and liabilities should be met – Orders made for the proceeds of sale of be placed in an offset account and applied to enumerated expenses. 	
		
Legislation:	Family Law Act 1975 (Cth)  	
		
Cases cited:	Second Life Decor Pty Ltd v Comptroller-General of Customs [1994] FCA 604; 53 FCR 78 	
		
Division:	Division 1 First Instance	
		
Number of paragraphs:	45	
		
Date of hearing:	28 November 2024 	
		
Place:	Sydney	
		
Counsel for the Applicant:	Ms Lawson	
		
Solicitor for the Applicant:	Barker Evans 	
		
Counsel for the Respondent:	Mr Jones SC	
		
Solicitor for the Respondent:	Barkus Doolan Winning	

ORDERS
	SYC 8513 of 2023	
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)	
BETWEEN:	MR BEULEN
Applicant
	
AND:	MS BEULEN
Respondent
	
	INDEPENDENT CHILDREN'S LAWYER

order made by:	BOYLE J	
DATE OF ORDER:	3 DECEMBER 2024	

PENDING FURTHER ORDER THE COURT ORDERS THAT:
1.	The matter is listed for a Case Management Hearing before Justice Boyle on 17 December 2024 at 9:30am. 
2.	The Directions Hearing before Senior Judicial Registrar Buttriss on 9 December 2024 is vacated. 
Interim property orders 
3.	Order 1 of the Orders made on 19 March 2024 is discharged. 
4.	Pending further order, the following expenses only shall be paid as and when they fall due from the joint Westpac redraw facility having the number ending #...85:
(a)	Mortgage repayments for the real property at B Street, Suburb C NSW ("the Suburb C property").
(b)	All utilities and rates for the Suburb C property including council rates, gas, electricity, insurances and water.
(c)	D Insurance health insurances policy premiums for the parties and children at the current level of cover.
(d)	All amounts owing to E Insurance with respect to E Insurance Policies …20, …19 and …52 ("the E Insurance policies").
(e)	School fees for both children as invoiced by F School and G School from time to time.
5.	Each party shall notify the other not less than 3 business days prior to drawing funds to meet one of the nominated expenses in Order 4 herein, and provide the other with the details of the expense being met. 
6.	Within 7 days of these Orders, the husband shall do all things and sign all documents necessary to appoint a Trustee for Sale of the property at H Street, Suburb J VIC (“the Suburb J property”). 
7.	For the purposes of Order 6, unless otherwise agreed between the parties:
(a)	The wife shall provide to the husband a list of three proposed trustees for sale within 48 hours of these Orders being made. 
(b)	The husband will nominate a trustee from the list proposed by the wife within 7 days of these Orders being made (“the Trustee”).
8.	The Trustee shall have the sole power to do the following:
(a)	Select the agent to have conduct of the sale (“the selling agent”).
(b)	Negotiate the commission rate with the selling agent. 
(c)	Sign the agency agreement with the selling agent. 
(d)	Determine the method of sale, listing price and reserve price for the Suburb J property in consultation with the selling agent and/or with the assistance of a formal valuation if required by the Trustee. 
(e)	Select the solicitor to act on the sale of the Suburb J property and instruct that solicitor to prepare the contract for sale. 
(f)	Undertake any clearing of vegetation and undertake any minor maintenance or repairs as recommended by the selling agent with the costs to be met from the sale proceeds. 
(g)	Do all other things necessary to sell the Suburb J property for the best price reasonably obtainable. 
9.	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 agent. 
(b)	Signing all documents requested to sell the Suburb J property. 
(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 the Suburb J property. 
(d)	Allowing inspection of the Suburb J property at all times as requested by the selling agent. 
(e)	Doing or saying nothing to hinder or prevent a sale being effected. 
10.	On the settlement of the sale of the Suburb J property, the Trustee and the husband (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 the Suburb J property held by Westpac. 
(b)	Payment of conveyancing legal costs relating to the sale including but not limited to conveyancer’s professional fees, government lodgement fees. 
(c)	Payment of the agent’s commission and any advertising expenses associated with the sale. 
(d)	Payment of any auctioneer’s fees if applicable. 
(e)	Payment of an amount equal to the estimated Capital Gains Tax (“CGT”) arising on the sale of the Suburb J property to be held in a controlled monies account in the joint names of the parties until such time as the CGT is payable. 
(f)	Payment of the balance remaining thereafter on settlement to the joint Westpac redraw facility having the number ending #...85. 
11.	After CGT arising from the Suburb J property becomes payable, the parties shall do all acts and things and sign all documents necessary to effect payment of all CGT payable by either party from the controlled monies account referred to at Order 10(e) above and in the event there is a balance remaining in the controlled monies account, the parties shall pay the balance as to 50% to the husband and 50% to the wife. 
THE COURT NOTES THAT:
A.	The purpose of the listing on 17 December 2024 is to fix the matter for Final hearing and make directions with respect to the Final Hearing. 
B.	It is requested that the legal representative for the Applicant notify the Independent Children’s Lawyer of the listing. 
C.	The parties are resolving the issue of the appointment of an expert in the parenting matter and any minute of agreed orders can be forwarded to chambers. 

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).

EX TEMPORE REASONS FOR JUDGMENT
BOYLE J:
1	This is an interim property dispute between the parties.  
2	The context of the matter is that the husband is the sole director and shareholder of a corporate entity, which controls a business that the wife has worked in since 2009 in various roles.  She is currently the Chief Executive Officer (“CEO”) of the business.  The husband has owned the company since 1999.  
3	The parties have been in a relationship since 2008. They separated in May 2023.   They have two children, who live with the wife in the former matrimonial home. There are time arrangements between the father and the children pursuant to Interim Orders.
4	There have been proceedings involving these parties in a variety of places.  There have been criminal proceedings, which I understand have concluded, although the husband indicated he may seek to appeal the orders that were made against him in those proceeding.  He was acquitted of some matters, and convicted of some.  There is a current Apprehended Domestic Violence Order for the protection of the wife against the husband.  
5	There are proceedings in the Fair Work Commission which are in the final stages. There are some further submissions to be made in writing, and a determination to issue.  Those proceedings were commenced by the wife in late 2023 with respect to, as I understand the phrasing of the Fair Work Commission, a ‘stop bullying application’.
The Application 
6	The parties agreed on some matters at the beginning of the hearing.  They agreed to a sale of the Suburb J property on terms that the wife has indicated, with a trustee for sale to be appointed.  
7	The husband seeks in this application to vary Consent Orders that were entered into on 19 March 2024.  He seeks to lift an injunction at Order 7(s) that he be restrained from taking steps to remove the wife as an employee.  He seeks to discharge Order 1 of those Orders, which required him to meet various listed expenses, including the mortgage on the former matrimonial home, utilities, rates, and health insurance. 
8	The husband seeks orders to be able to reactivate a redraw facility on the former matrimonial home, which would enable the parties to access $440,000 to meet various debts on his application, and then ongoing expenses.  He proposes that the proceeds of sale from Suburb J be placed in the redraw account, once funds have been set aside to meet the capital gains tax liability, to be available for use by the parties.
9	In addition to the sale of the Suburb J property the wife seeks the sale of a Suburb K property. That property is in the husband's sole name and was acquired by him prior to the relationship.  She seeks that after the sale expenses are met, the rest of the amount be deposited into a redraw account.  It is a different account than that which I have previously referred to.  The husband opposes the sale of the Suburb K property, and seeks to retain that property as part of his final application.  
10	An additional matter arose during the hearing of the matter. I raised with Counsel for the husband that on his proposal the wife would lose her employment and therefore her income. The husband proposed that occur without payment of spouse maintenance.  
11	An order was proposed by the husband, received by agreement after the conclusion of the hearing, that he would pay or cause to be paid to the wife her current salary on a fortnightly basis.  She would retain entitlements, including the vehicle she drives. The orders proposed are that the husband would continue this payment for a period of six months.  Should he fail to meet two of the spouse maintenance payments, the Suburb K property would be sold on the same terms as Suburb J, by a trustee for sale.  
Consideration
Whether the restraint on the husband terminating the employment of the wife should be discharged 
12	The parties currently have a fairly poor relationship on any view. I have before me an abundance of correspondence between them which supports that, annexed to both their affidavits.  
13	The correspondence indicates their issues have spilled over to the workplace.  The wife commenced the ‘stop bullying’ proceedings before Fair Work Commission in late 2023.  It would be fair to say there has been a poor working relationship since then.
14	There is no dispute on the evidence that the wife is competent at her job, and that she has brought business into the company in the last six months of some $400,000. 
15	The husband argues that the acrimony between them has had an impact on employees and on clients.  In effect, he blames the wife for those problems, where to a large extent she blames him for those problems.
16	These issues in the workplace did not start after the Consent Order of 19 March 2024. That is obvious when one looks at the start date for the Fair Work Commission proceedings in late 2023.  
17	Senior Counsel for the wife argued not to lift the injunction for a variety of reasons, but in essence these were:  
(a)	There has been no material change to circumstances since the Order was made. 
(b)	At the time of the Order the business problems were already in existence.
(c)	What the husband is seeking is an abuse of process, with the predominant purpose being to obtain a collateral advantage in other proceedings: Second Life Decor Pty Ltd v Comptroller-General of Customs [1994] FCA 604; 53 FCR 78. 
18	In the proceedings in the Fair Work Commission, the wife seeks orders to manage, in essence, the husband's conduct to make the work environment work, if I can use that descriptor.  If the wife is terminated, as is clear would happen were I to lift the injunction, it would render those proceedings nugatory.  If there were any doubt about that, I have the affidavit of Ms L which confirms that.
19	The husband has taken me to doctor's notes, and I have the affidavit of the mother's general practitioner.  In mid-2024 the doctor made a file note which says:
Would like to push her court hearing for work place bullying to 2 wks time.  Desperate to nail the ex – [Dr M] has written a helpful note. My notes may not work as it mentions the family law court stuff – But this is all relevant to the bullying as well….
(As per original)
20	The doctor's affidavit makes it clear that the content was not written by the wife, it was written by the doctor.  It was not said by the wife, it is his surmising of her position.  In my view, the note does nothing more than confirm that there is a situation of acrimony in existence, that there are Fair Work proceedings in addition to these proceedings, and that there is a situation of high stress.  
21	Considering the Fair Work Proceedings, I accept the submission made by Counsel for the wife that the provision of guiding rules through the Fair Work Commission decision provides a solution to the immediate workplace issues.  Counsel for the husband suggests that the lifting of the injunction would not prevent further Fair Work proceedings by the wife for unfair dismissal, if she chose to do so.  Counsel for the husband suggested that the court should let the parties resolve the workplace problems through the mechanisms set up for that. 
22	The difficulty with that argument is that there are current proceedings before the Fair Work Commission, which were on foot at the time that the husband filed the application and on foot at the time that the injunction was made. For the court to lift the restraint would be to deprive the wife of income and employment in circumstances where the husband only sought to deal with that issue when it was raised by me mid-hearing. It is difficult to understand his position about that given the obvious problems of depriving the wife of an income and employment, which was a problem for him to address.
23	This is particularly the case when the husband has not been meeting various payments, and she has undertaken a greater degree of financial responsibility for herself and for the children.  It is clearly in the interests of both parties for this business to operate successfully, as it has done previously.  In these limited interim proceedings it is not possible for me to make findings, if it is at any point, about what might have caused the downturn in business.  
24	The following facts, it appears, are not in dispute: 
(a)	The husband stepped away from the operation of the business in late 2019.
(b)	The wife from that point took control of the business activities. She had previously been involved in the operation of the business The company ran at a profit.
(c)	Since 2023, the husband has returned to the operation of the business.
25	Annexure D of the wife's affidavit is a document prepared by the company accountant, and it sets out annual revenue and loss for various years.  The 2021 and 2022 listings show an annual revenue that makes it clear the company was doing well, and running at a profit, and that it was doing better than it had in the 2017 and 2018 financial years.  That is as far back as that record shows.  On the evidence I have, I accept that I can be confident that the wife is capable of operating the business in a manner that is profitable to the business and preserves the business. It is undisputed that the wife brought in some $400,000 in revenue in the last six months. 
26	I accept that the Fair Work Commission proceedings should be finalised.  This will provide assistance and guidance to the parties, and some ground rules about the way they behave towards each other in the workplace.  The parties entered the 19 March 2024 Orders by consent at a time those proceedings were on foot, and there were problems in existence.  There has been, I accept, no material change since the making of that Consent Order, and I do not propose lifting the injunction as the husband seeks.
Payment of ongoing expenses and repayment of debts 
27	Turning to the issue of the husband's obligations to meet the expenses under Order 1 of the Orders of 19 March 2024, it is the husband's position, in essence, that there are no liquid funds available to meet the expenses.  He now accedes to the sale of the Suburb J property in those circumstances. He proposes a payout of the mortgage and sale costs, and that the funds remaining be placed in the redraw account available to the parties. The funds available should be between $200,000 and $300,000.  It is difficult to know precisely, because no figure has been provided about Capital Gains Tax, and those funds will be set aside.
28	The husband otherwise has a number of investment properties which are owned through a trust structure.  That trust structure does not apply to the former matrimonial home, the Suburb J property and the Suburb K property.  The wife has an unencumbered property in Suburb N.  The three properties, being Suburb J, Suburb K and Suburb N, the parties respectively brought into the relationship.  
29	In addition, the husband seeks from the proceeds of sale of the Suburb J property that each party be paid $50,000.  The climate of distrust between the parties is such that the wife's proposal for a trustee for sale was embraced by the husband during the course of the proceedings.  
30	In terms of other assets that could be liquidated to meet costs, the wife points to Motor Vehicle 1 owned by the husband which was listed for sale and did not sell.  She also points to Motor Vehicle 2, which the husband says he has through the company, another motor vehicle and a recreational vehicle.  They are all things that would not garner the kind of funds available from the redraw facility, nor would they be available as quickly.  The wife does not actually seek an order for the sale of those items but in submissions made the point that those were available.  
31	The husband has liquidated two share accounts with a total value of $704,384.  Capital gains Tax has not been set aside nor paid.  He tells the court he spent the entirety of those funds.  
32	On his evidence, the share liquidation took place somewhere between 16 April 2024 and 30 May 2024.  Those funds were not used to pay the wife the $250,000 she received through the Orders made on 19 March 2024, because that amount was required to be paid within seven days of the Orders. I have no evidence that did occur.  
33	The Orders of 19 March 2024 also provided that the husband receive $150,000 to meet tax obligations, and the wife received $71,494 with respect to her tax obligations.  One of the difficulties with the husband's application is that he refers to various funds having been spent on school fees, mortgage payments, utilities, legal fees, and to "prop up" the entity O Pty Ltd.  There is no issue that the mortgage on the former matrimonial home has not been paid for the last nine payments, essentially since the Consent Orders were made. Therefore funds from the liquidation of the shares could not have been used for that purpose.
34	School fees have a remaining $14,150 unpaid, so it is possible that some of those funds were used for that purpose.  It is surprising, given the amount that was available to the husband, that there is any amount of school fees unpaid.  
35	The husband has paid legal fees of $175,000, and owes a further $35,000 on his evidence.  The Australian Taxation Office is owed $30,000 for Capital Gains Tax on the share sale which has not been paid. 
36	The husband's application relies on an affidavit filed on 22 November 2024.  Within that affidavit, it is not possible to find evidence detailing the use of those funds.  In an application brought by the husband, where he is seeking further funds be made available, it is worrying that he does not do so.  At the close of submissions, and after Counsel for the wife had concluded, the husband sought to tender a document. Objection was taken and upheld. That document was said to explain use of the funds by the husband.
37	The husband has not provided any reasonable explanation for why the use of the funds was not explained within his affidavit material. His Financial Statement does not assist. I appreciate the timing of the Financial Statement and the sale of the shares, however there is no reference to the share portfolio, either as an asset or as an asset that had been disposed of, as I read the husband's Financial Statement.  There is a reference to Capital Gains Tax on share sales to be confirmed, and that is as much information as one can glean.  
38	The concerns about those matters make it clear why it is extremely important for the funds that are available from the Suburb J sale to be treated in a transparent manner that gives both parties oversight on the use of funds.
39	Turning to the use of the redraw facility secured against the former matrimonial home, orders are in place restraining the parties from using the funds.  The redraw facility provides, on the evidence currently available, the only immediate access to cash to meet urgent liabilities.  Both parties agree meeting the mortgage payments on the home is urgent.
40	I accept that the lack of available funds, leaving aside the husband's failure to explain use of the funds that were available, requires a variation of the Orders of 19 March 2024, so the parties can access the redraw.   These funds will be topped up by the funds from the Suburb J sale.  I accept that there will be a diminution of those funds, but that nonetheless that will provide a buffer on the former matrimonial home. I understand the wife's concern that should continue to exist.  
41	I do not propose ordering a payout, as the husband seeks, of $100,000 to the parties.  It is opposed by the wife and that would, in my view, ensure that the funds were depleted prior to any final hearing.  A submission was made that the court could order a lesser amount.  In circumstances where the parties now have use of the redraw facility for payment of expenses previously within the husband's responsibility, providing relief to the husband, it is not necessary to provide him with a lump sum.  He has the capacity to raise funds from the sale of Motor Vehicle 1, as Counsel for the wife pointed out, and has not yet done so.
42	It will be necessary, at a Final Hearing of this matter, to have a proper understanding of the manner in which the funds from sale of the shares have been used.  For example, it is not clear what funds were paid into O Pty Ltd by the husband. The husband needs to make those things clear and explicit in his sworn evidence.  
43	The expenses that will be met are those enumerated and no others. The intention is that there will then be security for the home in which the children reside, the ongoing school fees will be met, and the other expenses met that are enumerated in the Orders sought by the husband at his Order 7.
44	The assets in the matter total some $11.4 million.  The basis upon which I am dealing with the matter is conservative, in the sense that there are sufficient funds available for an adjustment at the Final Hearing depending on how the evidence falls, for example, with respect to his use of funds.  It is important that payments be made in a transparent manner so that it avoids difficulties of parties' uncertainty as to how funds have been used.
45	In terms of the sale of the Suburb K property, at this point I accept that the husband has a desire to retain the property, that it does not have the immediate benefit of the redraw facility, and that it would incur a further Capital Gains Tax liability were it to be sold.  On the basis of the proceeds from Suburb J and the funds in the redraw facility being applied to expenses, I am not satisfied that sale of the Suburb K property is required at this point in time.  That may need to be revisited. There is sufficient property available to make appropriate adjustments at the Final Hearing. 

I certify that the preceding forty-five (45) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Boyle.	

Associate: 

Dated:	11 December 2024