Agner and Somers
[2011] FMCAfam 291
•14 April 2011
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| AGNER & SOMERS | [2011] FMCAfam 291 |
| FAMILY LAW – Application for alteration of property interests – credit issues – bankruptcy – fraudulent transactions – findings as to valuation – contribution – s.75(2) considerations – just and equitable orders. |
| Child Support Assessment Act 1989, ss.116 Family Law Act 1975, ss.75(2), 79 |
| Black & Kellner (1992) FLC 92-287 O'Ryan and Broadfoot, 5th National Family Law Conference Handbook |
| Applicant: | MS AGNER |
| Respondent: | MR SOMERS |
| File Number: | SYC 287 of 2009 |
| Judgment of: | Altobelli FM |
| Hearing dates: | 7 & 8 February 2011 |
| Date of Last Submission: | 8 February 2011 |
| Delivered at: | Sydney |
| Delivered on: | 14 April 2011 |
REPRESENTATION
| Counsel for the Applicant: | Mr Maurice |
| Solicitors for the Applicant: | Bull Son & Schmidt Lawyers |
| Counsel for the Respondent: | Mr Livingstone |
ORDERS
Property Settlement Orders
That the Husband indemnify and keep indemnified the Wife in respect of any claims for payment or repayment by any third party or entity concerning the mortgaged properties or any of them and any other loans as defined herein.
That subject to these orders each party otherwise is declared solely entitled to all other property and resources in their respective possession and control.
Superannuation Splitting Orders
[S] Super scheme
That the Court allocate as required by section 90 MT (4) of the Family Law Act 1975 (“the Act”) a base amount of $8,400.00 to the wife out of the interest of Mr Somers born [1966] (“the husband”) in the [S] Super scheme (“the [S] Fund”).
That in accordance with section 90 MT (1) (a) of the Act whenever a splittable payment becomes payable, the Trustee of the [S] Fund (“the [S] Trustee”) shall:
(a)pay to the wife or the wife’s legal personal representatives the amount calculated in accordance with Part 6 of the Family Law (Superannuation) Regulations 2001; (“the Regulations”) and;
(b)make a corresponding reduction in the entitlement the husband would have had in the [S] Fund but for this order.
That the [S] Trustee shall do all such acts and things and sign all documents as may be necessary to:
(a)calculate in accordance with the requirements of the Act and the Regulations the amount to be paid to the wife pursuant to order 6 herein; and
(b)pay the amount whenever the [S] Trustee makes a splittable payment out of the husband’s interest in the [S] Fund.
That these orders have effect from the operative date which is
5 business days after service of a sealed copy of these orders upon the [S] Trustee.
That the [S] Trustee shall do all acts and things and sign all documents as may be necessary so that in accordance with the obligations set out under the Act and Regulations, the [S] Trustee can calculate the amount due and make payment to the wife in accordance with orders 6 and 7 herein.
That the wife do all acts and things necessary, including but limited to, exercising her request pursuant to reg.7A.O6(1) of the Superannuation Industry (Supervision) Regulations 1994 for the rollover or transfer of the amount due out to her of the husband’s interest in the [P] Fund to a fund of the wife’s choice in accordance with reg.7A. 12 of the Superannuation Industry (Supervision) Regulations 1994.
That pursuant to r.14F of the Regulations, any payments from the husband’s Superannuation interests made after the [S] Trustee has rolled over or transferred the amount due to the wife to a fund of the wife’s choice are not splittable payments.
Having been accorded procedural fairness, these orders require the [S] Trustee to observe the requirements of the Act and the Regulations.
[P] Super Fund
That the Court allocate as required by section 90 MT (4) of the Family Law Act 1975 (“the Act”) a base amount of $63,900.00 to the wife out of the interest of Mr Somers born [1966] (“the husband”) in the [P] Super Fund (“the [P] Fund”).
That in accordance with section 90 MT (1) (a) of the Act whenever a splittable payment becomes payable, the Trustee of the [P] Fund (“the [P] Trustee”) shall:
(a)pay to the wife or the wife’s legal personal representatives the amount calculated in accordance with Part 6 of the Family Law (Superannuation) Regulations 2001; (“the Regulations”) and;
(b)make a corresponding reduction in the entitlement the husband would have had in the Fund but for this order.
That the [P] Trustee shall do all such acts and things and sign all documents as may be necessary to:
(a)calculate in accordance with the requirements of the Act and the Regulations the amount to be paid to the wife pursuant to order 14 herein; and
(b)pay the amount whenever the [P] Trustee makes a splittable payment out of the husband’s interest in the Fund.
That these orders have effect from the operative date which is 5 business days after service of a sealed copy of these orders upon the Trustee.
That the [P] Trustee shall do all acts and things and sign all documents as may be necessary so that in accordance with the obligations set out under the Act and Regulations, the [P] Trustee can calculate the amount due and make payment to the wife in accordance with orders 14 and 15 herein.
That the wife do all acts and things necessary, including but limited to, exercising her request pursuant to reg.7A.O6(1) of the Superannuation Industry (Supervision) Regulations 1994 for the rollover or transfer of the amount due out to her of the husband’s interest in the [P] Fund to a fund of the wife’s choice in accordance with reg.7A. 12 of the Superannuation Industry (Supervision) Regulations 1994.
That pursuant to reg.14F of the Regulations, any payments from the husband’s Superannuation interests made after the [P] Trustee has rolled over or transferred the amount due to the wife to a fund of the wife’s choice are not splittable payments.
Having been accorded procedural fairness, these orders require the [P] Trustee to observe the requirements of the Act and the Regulations.
General Orders
That the parties do all acts and things necessary to fully implement these orders.
That in the event of either party failing to execute any document required to give effect to these orders within 7 days of being requested to do so by the other party, the Registrar or a Deputy Registrar of the Court shall be empowered pursuant to s.106A of the Family Law Act to execute such document on behalf of and in lieu of the party in default.
Notation
That the Court notes that in these orders:
(a)“the mortgaged properties” means all real estate acquired in the name of the wife (either solely or jointly with any other person or entity) from the date of marriage to the date of these orders utilising borrowed funds from any source whatsoever in whole or in part;
(b)“any other loans” means any loans borrowed in the name of the wife and obtained from any source whatsoever in whole or in part from the date of marriage to the date of these orders, whether or not secured by real estate.
IT IS NOTED that publication of this judgment under the pseudonym Agner & Somers is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYC 287 of 2009
| MS AGNER |
Applicant
And
| MR SOMERS |
Respondent
REASONS FOR JUDGMENT
Introduction
This is an application for alteration of property interests under s.79 of the Family Law Act, commonly known as an application for property settlement. The applicant is the wife who is 41 years old and who is currently unemployed but was, until recently, an [omitted]. The respondent husband is 44 years old and is a [omitted].
Background
The husband and wife married [in 1997] , and separated on 13 July 2005. They cohabited for just under eight years, and the separation took place almost six years ago. They have two children, aged 14 and 12 who live with the wife and spend time with the husband.
Whilst the constitution of the asset pool is hotly contested between the parties, on either scenario it is a modest pool of assets. During the course of the marriage the husband became bankrupt, and most of the assets they then had were lost as a result. During and after the bankruptcy the parties made a number of investments in the name of the wife, and these too were unsuccessful, leaving debts in the wife’s name. In view of this, this case is primarily about how to adjust the parties’ relatively modest property having regard to substantial debts, and how they were incurred. The wife raises issues about the extent to which the husband has complied with his duty of disclosure.
The orders sought by the wife are contained in a document entitled, “Minute of 3rd Amendment to Orders to be sought by the wife”. This Minute of Order is reproduced as Schedule A to these reasons. The effect of the orders sought is that the wife receive $48,590 which is equivalent to 50% of the value of the husband’s interest in the business, as valued in these proceedings. That payment would take place by way of monthly instalments. In addition, the wife seeks orders that all of the husband’s superannuation entitlements in two schemes be split in her favour. The wife also seeks a number of other consequential orders to which reference will be made, if necessary, during these reasons.
The orders sought by the husband are contained in his Amended Response filed 28 January 2010. He proposes that there be a superannuation split in relation to one of his superannuation funds so that the wife receives $16,000. He also proposes an order whereby he would indemnify, and keep the wife indemnified, in respect of any claims for payment by any third party or entity concerning the mortgage properties or any of them. He otherwise proposes that the parties retain what they have. The orders sought by the husband are reproduced in the Schedule B to these reasons.
Issues
A number of issues arise in this case. I will need to make findings about the parties’ credit with each of the husband and wife submitting that the other’s evidence should not be accepted, either generally, or in relation to specific issues. There are also a number of issues about the balance sheet including assessing evidence about the value of the husband’s business, as well as issues about liabilities and other minor matters. I will then need to assess contribution and determine whether there should be any adjustment under section 75(2) of the act. I will then need to determine what are the just and equitable orders to make in the circumstances of this case.
The evidence, and the case advanced by each party
Mr M was appointed as a single joint expert for the purposes of valuing businesses carried out by the husband through companies including [M] Pty Limited , [A] Pty Limited and [B] Pty Limited. His report is annexed to his Affidavit, filed 19 April 2010. The wife submitted that his evidence as to value, namely that the value of the husband’s business was $97,182, should be accepted by the court. The husband submitted that the evidence should not be accepted, and that the most likely scenario was that the husband’s business had no value. I will need to make a determination in this regard.
At the hearing the wife relied on her Affidavits filed 20 May 2009, 6 April 2010 and 17 January 2011. At the commencement of the hearing the wife had sought leave to apply for a child support departure pursuant to section 116(1)(b) of the Child Support Assessment Act 1989, but I declined to do so because of the prejudice that would have caused to the husband. Clearly this was a matter that was raised at the very last moment by the wife. In the wife’s evidence she sets out a quite detailed financial history of the marriage including evidence about what she asserted were the assets at cohabitation, their respective work histories, her role as homemaker and parent, and her quite extensive efforts to obtain the husband’s disclosure about his finances since their separation. It was part of the wife’s case that the husband had control of the finances and that she was not directly involved in decision making. She deposes in her Affidavit to the husband being investigated by the Australian Securities & Investment Commission arising out of his employment as a [omitted] with a company known as [Y]. She asserts that the husband was banned as a [occupation omitted] for a period, was unemployed for about six months, and then became bankrupt in 2002. The wife deposes that even though the husband was bankrupt he continued to work in the [omitted] industry and that in the period from about 2002 onwards he procured her to enter into a number of purchases and mortgage transactions. When these proceedings commenced, it was the wife’s assertion that many of the signatures appearing on documents evidencing key aspects of the purchases and mortgages were in fact not her signature. Apparently there was a subsequent ASIC investigation in relation to these transactions, which involved the company that the husband was employed by, [T], and [L], She deposes that both [T] and [L] collapsed and that she was left with demands for payment by the mortgage insurers relating to the loans, all of the properties having been sold and leaving a deficit. Specifically, her evidence is that there is at least one liability in the sum of at least $70,832.34 that she owes to the mortgage insurer in relation to the deficit arising from the sale of an investment property in Victoria. I must say it is not clear from the wife’s evidence, or indeed any of the other evidence given during the proceedings, whether this is the only debt, or is merely an example of the debts she owes. The wife also gives evidence of expenditure by the respondent, known to her, which, she submits, indicates a lifestyle quite disproportionate to the financial position that the husband himself presents to the court.
The husband’s evidence consisted, quite remarkably, in only one Affidavit that was filed on 16 July 2009. In this comparatively short Affidavit he provides some background detail, evidence about assets at cohabitation, their working histories, and the disastrous impacts on him, and the family, as a result of an investigation by the Australian Taxation Office on the affairs of [Y]. He deposes to this resulting in investments that he had purchased being rendered valueless, the creation of an ATO debt of about $300,000, as well as borrowings used to purchase the investments, that could not be repaid. This resulted in his bankruptcy from the end of 2002. The husband gives evidence that at the end of 2003 he obtained employment as a [occupation omitted] with [T], but, strangely, he provides no evidence about the many transactions that he procured the wife to enter into during these years. He explains that in 2005 [T] suffered financial difficulty and all employees, including himself, were terminated. He was able to quickly find employment as an employee with [A] Management Pty Limited, as well as working in his own right in servicing his own clients. He was discharged from bankruptcy on 17 May 2006. He says that from December 2007, he conducted his business through a company, [M], but that he has an interest in the business named [A].
It is significant to record that at no point during her case did the wife assert that the husband was responsible for his bankruptcy, or that the financial tragedy that they suffered was anything but a joint loss that they incurred in the course of the financial peaks and troughs of a marriage. The wife’s case focuses on, and is highly critical of, the husband’s conduct during his bankruptcy and the impact on her of being left with such substantial debts which, she asserts, is affecting her credit record. Having heard all of the evidence, I can now say that there was a higher than normal level of acrimony and bitterness in these proceedings. It is quite possible that emotion has been permitted to cloud good judgment in this case. I understand, for example, that very substantial legal fees have been incurred on the part of the wife. Indeed, the impression formed is that she may have spent far more than she could have ever expected to recover from these proceedings, even if the court were to unquestioningly accept all that was advanced on her behalf.
The Applicable Law
The preferred approach to the determination of an application under s.79 of the Family Law Act is set out in a passage found in the Full Court’s decision in Hickey & Hickey & Attorney-General of the Commonwealth of Australia (Intervener) (2003) FLC 93-143 at 39.
The Full Court states that there are four inter-related steps:
a)Identify and value the property, liabilities and financial resources of the parties; and
b)Identify and assess the contributions of the parties and express them as a percentage of the net value of the property; and
c)Identify and assess the other facts relevant under s.79(4)(d)-(g) including s.75(2) and determine the adjustment (if any) to be made to the contribution entitlements at step two; and
d)Consider the effect of the above and resolve what order is just and equitable in all the circumstances.
A significant issue in this matter was the alleged non-disclosure of the husband. Attempting to deal with non-disclosure often puts the other spouse to considerable difficulty with regards to investigating their financial affairs. The Full Court in Weir (1993) FLC 92-338 at 79,593–4 made the following statement regarding the duty to disclose and the Court’s powers where non-disclosure has been found:
This Court has pointed out in a line of cases leading up to the recent decision of the Full Court in Black & Kellner (1992) FLC 92-287, that it is the duty of a party involved in property proceedings in this jurisdiction to make a full disclosure of their financial affairs. See also Giunti & Giunti (1986) FLC 91-759, and Mezzacappa & Mezzacappa (1987) 11 Fam LR 957; (1987) FLC 91-853. It is clear enough from his Honour's findings in the present case that the husband had not done so and had in fact pocketed the proceeds of a substantial number of cash sales. It is obvious that in most cases of this nature it is difficult enough for the other party to establish that fact let alone establish the quantum of what has been taken.
It seems to us that once it has been established that there has been a deliberate non-disclosure, which follows from his Honour's findings in this case, then the Court should not be unduly cautious about making findings in favour of the innocent party. To do otherwise might be thought to provide a charter for fraud in proceedings of this nature…
We appreciate that this is something of a broad brush approach, but, as we have said, where there is clear evidence of non-disclosure as there was here, the Court should not be unduly cautious about making findings in favour of the other party. It has been said by one commentator (O'Ryan and Broadfoot, 5th National Family Law Conference Handbook, p 249) the failure to disclose undermines the whole process of adjudication of proceedings for a settlement of property in that the court is unable to identify the property of the parties, to properly assess contribution, or to properly assess s 75(2) factors.
Credit issues
The wife makes the following assertion at paragraph 17 of her Affidavit filed 6 April 2010:
I did not sign most of the documents attributable to me in the purchase of properties or the applications for loans shown to me during the ASIC interviews.
There is no doubt that the wife is referring to the ASIC interviews to which she deposes in paragraphs 11 – 16 of her Affidavit, and to the various documents referred to therein. Moreover, she makes the following statement at paragraph 19 of the same Affidavit:
On several documents shown to me during the ASIC interviews there are signatures said to be witnessed by justices of the peace including Ms G, Ms M and Mr O. To the best of my recollection I have never met any of these people or asked them to witness my signature.
Curiously, and despite the significance of this issue in the proceedings overall (a matter recognised at, for example, paragraph 14 of the wife’s first Affidavit filed 20 May 2009), the wife does not make the assertions referred to at paragraphs 17 and 19 above, or even similar assertions, in her first Affidavit filed in these proceedings, namely that of 20 May 2009.
Nonetheless, her case was opened by her Counsel, Mr Maurice, on the basis that the signatures to the documents which became exhibit A1 were not the wife’s signatures. She maintained this position throughout her oral evidence. There was no doubt in my mind, or in the mind of Counsel for the husband, Mr Livingstone, that the wife was making fraud allegations in this context, and specifically against the husband.
As it turns out, I do not accept the wife’s evidence that she did not sign the documents referred to above. She was meticulously and robustly cross-examined about this by Counsel for the husband.I found her answers to be equivocal and unconvincing. By far her most common reply was that she “did not recall” even when it was specifically put to her that it was her signature appearing on a particular document. It was disingenuous of the wife to firstly allege fraud, through her Counsel, but then to equivocate when pressed in cross-examination.
I find that it is far more likely than not that the wife did sign the documents but has forgotten that she did so. She herself gives evidence about signing documents at the husband’s request during the course of the marriage, clearly in situations where she did not know what it was that she was signing.
In any event, having regard to all of the evidence, I accept the detailed submissions made by the Mr Livingstone in his closing address. In his written submissions, he stated that:
Claims of forgery of the wife’s signature
The wife’s evidence as to the alleged forgery of her signature on numerous documents is problematic for a number of reasons:
1.The signatures were previously described as ones she did not recall making in her affidavit. This was elevated to forgery in her oral evidence;
2.A number of alleged forgeries were witness by third parties;
3.The wife made no investigation of the bona fides of the signatures or, where used the stamps of the third party witnesses;
4.The wife made no complaint to anyone about the husband’s alleged fraud and other nefarious activities, not even to her parents;
5.If the husband was able to make the wife sign blank sheets of paper and the last pages of some documents why not simply demand that she sign the documents if he had such power over her? None of the so called forged documents appears to have text added later.
6.A number of the allegedly forged documents bears signatures in multiple places on the same page of a document. The wife did not depose to having been asked to sign in certain places on the blank pages.
7.The husband denies the allegations made by the wife;
8.Ms Agner’s case viz fraud was incomplete right up to the time she reached the witness box (as evidenced by her counsel leading evidence from her);
9.Ms Agner did not seek the intervention of a forensic document expert;
10.The signatures on the impugned documents resemble each other but do not appear to have been traced, they are not identical;
11.Doubt was cast on the wife’s case that she unerringly placed a dot after her name in that her passport application did not bear a dot. She did not explain this inconsistency.
12.The wife’s use of the word “recall” falls outside the common English usage of the word;
13.The wife’s evidence that she had time constraints when it came to studying the documents was problematic;
14.Similarly the wife’s case that she had been constrained in what she could say about forged documents due to long since concluded ASIC enquiries seemed to have been a recent invention;
15.A number of allegedly forged documents gave the wife’s mobile number and home address, an extremely risky thing for a forger to do;
16.A number of documents were witness by Justices of the Peace and the wife’s work address was provided in two cases (Ms D and Ms G JP). The wife did not even consider this incredible coincidence under cross-examination;
17.The wife’s case in its most recent form involves a sophisticated forger/faker involving multiple third party witnesses, blank document signatures being incorporated into credit applications and fake signatures being applied to land title documents destined for the Land Titles office. This is a very different picture to that emerging from the wife’s second affidavit.
18.The matters in 15 would also be an incredible risk for a forger to take;
19.In a number of cases the forger or a complaint [sic] witness used an individual rubber JP stamp;
20.The wife did not claim to have an excellent memory even in relation to important events for example she did not recall the name or firm of the one and only solicitor who had obtained for her a substantial settlement of her personal injury case.
The wife bears the burden of proof in this matter and to the Briginshaw standard. The Court would need to be satisfied to that standard that the husband forged various documents in the manner the wife described. The Court could not be so satisfied.
Whilst this is a critical finding against the wife on a discrete issue as to her credit, it is not a generalised or broad finding of credit against her. I found the vast majority of her evidence to be truthful and, as will be seen, apart from on this particular issue, where her evidence conflicts with that of the husband, I prefer the wife’s evidence.
Apart from the husband’s evidence about the wife signing the documents referred to above, which I accept, I otherwise do not accept the husband’s evidence on financial matters. I found him to be an untruthful witness on all matters pertaining to his finances. There are at least three major reasons for this:
a)The husband was unresponsive, argumentative and uncooperative in cross-examination, particularly in relation to disclosure issues. Evidence was extracted from the husband, even non-contentious evidence, only with the persistence and skill of a veteran dental surgeon.
b)The husband’s disclosure to the court was entirely on his terms, and he showed no respect for the rules and procedures of the court in this regard. His only evidence was an Affidavit that was 18 months old, by the time of the hearing, which contained minimal relevant information. His bankruptcy and ASIC investigations are treated in his evidence in a cursory fashion. Nothing relevant is said about the [L] mortgages, and only scant evidence is provided about his employment during and since his discharge from bankruptcy. From the husband’s perspective it was clear that he was an adherent of the “minimalist is best” school of thought, in relation to disclosure in family law proceedings. That, of course, is his choice, but he must also accept the consequences of so doing. At the end of this hearing, I have no confidence at all in the husband’s evidence about financial matters. It is highly likely that he has not disclosed his true income and asset position. It is abundantly clear from the evidence that, for example, the husband’s father’s role in his business structure is purely a convenient device for the husband to split his income. The court has lingering doubts as to whether the husband’s superannuation entitlement is limited to that which is only in his name.
c)The husband’s evidence about the [L] mortgages was plainly unconvincing, and his actions reflect poorly on his honesty and integrity.
In relation to this last point, the focus is on the documents comprising exhibit A1 consisting of 32 pages. There are copies of the front pages of three contracts to purchase property noting the wife as purchaser. There are four applications for mortgage finance to L Home Loans in the wife’s name, and one in the name of Mr S, the husband’s brother. There is one document entitled “Loan repayment ability declaration” signed by the wife. There are three letters from [C] Business , signed by Mr C, two of which support loan applications by the wife, and a third one supporting the application by the husband’s brother. There are a number of other documents which clearly link the husband himself to all of these transactions and, indeed, create the impression of him being the facilitator of these loans. There are also some ancillary documents including mortgage account statements and copy mortgages.
It is important to set out the evidence the husband gave in cross-examination about the purchases of properties, and the [L] referred to in exhibit A1. The husband accepted in cross-examination that the wife was being pursued by creditors arising out of these transactions. However, he indicated that he did not accept any responsibility for any of these debts. This is somewhat strange given that his response clearly proposes an order that he indemnify the wife in relation to these liabilities. Notwithstanding the husband’s stated position in his amended response, his answer in cross-examination does tend to indicate a certain lack of commitment to the indemnity. In any event, when the husband was given the opportunity to explain who should be responsible, if he was not responsible, his answer was to the effect:
Those who dudded the investors.
Clearly from the husband’s perspective, his answer reveals that he did not consider himself responsible for the debts incurred by the wife, and his brother.
During the period of these transactions the husband explained in cross-examination that he was employed by [T] as their [occupation omitted] on a fixed salary. He was an undischarged bankrupt at this time. He agreed the properties were purchased in his wife’s name during this period. He agreed that the wife had not put any money at all into these purchases and that between 75 and 80 per cent of the purchase price was provided by [L]. When asked to explain where the equity came from, the husband explained that [T] provided this money and that even though the properties were held in the wife’s name, in fact it was held in trust for [T]. The husband agreed in cross-examination that this was probably the first time in these proceedings that it had been asserted that these properties were in fact held by the wife in trust for [T]. The husband could not explain why correspondence from his own solicitors created the impression that he was unaware of these transactions, and he acknowledged that both sets of solicitors had caused searches to be made to uncover details about them. The husband disagreed in cross-examination with the proposition that he wanted to give the impression that he knew nothing about these properties, and he accepted that he did, in fact, know some things. He could not explain why his Affidavit was silent about these transactions.
He agreed that [T] went into liquidation in 2005, that the proprietor had originally fled to the United States, but he claimed not to know that the proprietor had been extradited back to Australia and was now in gaol.
In cross-examination the husband agreed that in relation to the transactions represented in exhibit A1, he had introduced the wife, and his brother, to [T], and he was in control at all relevant times of the applications. He agreed that he completed the applications in his own handwriting. He agreed, for example, that he had written $5000 as the gross weekly income in one of the wife’s application for mortgage finance to [L]. When it was put to him in cross-examination that this figure was clearly incorrect, he explained that it represented the gross family income from all sources, and that this was in accordance with [L]’s guidelines. The husband agreed in cross-examination that he was the one who had arranged for the accountants, [C], to provide the letter to [L] in support of the applications for finance, and he agreed that the information contained in these letters was based on his instructions to the accountant, and was not based on anything that, for example, the wife had told the accountants. He agreed that the wife indeed had no dealings with the accountants, or [L], in relation to these loans. The husband agreed that he was the one who had written on the loan application that his wife’s current gross income was about $260,000, but he steadfastly refused to admit that this was a statement misleading to [L], and kept insisting that it was completed in accordance with [L]’s own guidelines.
The husband agreed that he had inserted the wife’s name in at least one of the contracts referred to in the exhibit. He agreed that these transactions were pursuant to an investment scheme in which he was a driving force, and that he needed the wife’s involvement because she was solvent, he was not.
In short, the documents, and the wife’s and the husband’s evidence, indicate that the husband used both his wife and his brother as convenient entities to participate in some form of investment scheme which, as far as can be ascertained from the evidence, involved the purchases of property putting in no money, but buying property in their name though in trust for [T], and borrowing substantial sums of money from [L] on the basis of low doc loans, all with complete disregard about the purchaser/borrower’s capacity to repay these loans. An accountant appears to have participated in what can only be described as blatant perfidy, all at the husband’s initiative and direction.
When the scheme came crashing down, with the properties sold at mortgagee sale at substantial losses, the wife and presumably the husband’s own brother were left to suffer the consequences as the husband walked away. The husband now loudly proclaims to this court, in cross-examination, that he accepts no responsibility for the wife’s residual debts from this venture, and that it is not his fault. Given the husband’s participation in all of these transactions, the husband’s attitude displays extraordinary hypocrisy at the very least, and of possible blatant fraud at the most.
The husband’s involvement in these transactions, and his demonstrated perfidy about them before the court, leaves the court to conclude that he lacks integrity and honesty in relation to any financial matters.
Lest there be any doubt about my findings in relation to the husband’s credit, there are other issues about his evidence that are plainly unsatisfactory. I will record these, but not go into detail. The husband’s cross-examination about exhibit A3, a copy of his Financial Statement sworn 19 June 2009, amended in his handwriting, clearly indicates that he had failed to disclose to the court the existence of one of his superannuation funds, as at 19 June 2009. His cross-examination plainly indicates that the husband continued to operate a business during his bankruptcy namely [B] Pty Limited, using the wife as, in effect, a puppet. She was the director of the company, he was not. He agreed, however, that at no stage was the wife conducting the business through this company. When cross-examined about why he had failed to disclose about the ASIC investigation and that he had been barred from acting as an authorised representative, his answer was that his lawyer did not think it was important. He was cross-examined about the relationship between [A] Pty Limited, his company, and [A] Management Pty Limited. He agreed that he had been working for the latter, but had absolutely no idea who the principals were and thus, who he was working for. I find this unconvincing. The husband referred to a commission splitting arrangement between the companies, but could provide no satisfactory details in relation to the same. The husband was cross-examined about splitting his income with his father. At first, he strenuously denied that this was happening. He explained that his father was 80 years old, had no experience in the industry, but had a 50 per cent interest in [M] Pty Limited . The husband agreed that all the income of [M] was generated by him, and that his father was obtaining a wage, though not working. The husband explained that his father was a director of the company and he was paid in that capacity. He agreed that other than his father’s role as a director, however, his father played no active role in the business that would justify him paying a wage. I find, in substance, that the husband has split his income with his father and that the husband’s denial of this was disingenuous and a convenient preoccupation with form, rather than substance. The final example to which I refer is that in cross-examination about how the husband financed a lifestyle that included holidays and air travel, he explained that travel to Fiji was funded, in part, by family allowance payments. The difficulty for the husband in this regard is that in none of his Financial Statement does he disclose the fact that he receives a family allowance.
The totality of the evidence before me leads to conclude that, at least in relation to financial matters, the husband is completely lacking in credit.
Balance sheet issues
Perhaps unsurprisingly, given my findings above, Counsel for the husband and the wife were not able to come up with an agreed balance sheet. In the circumstances, I will commence my discussion using the balance sheet contended for by the wife, and then seek to incorporate the husband’s balance sheet, as I make findings.
The applicant wife’s balance sheet as at 8 February 2011 states that:
No.
Item
Owned by
Wife’s value
1
[M] & [A] [F] businesses
H
97,182
2
[S] Super
H
8,424
3
[P] Super
H
63,916
4
[Omitted] cash account
H
[H] Fund
H
[Q] ($336,832)
H
Not known
6
[E] ($384,000)
H
Not known
[D] Project
H
10,000
7
Loan from parents
H
Not applicable
8
Bank account
H
12,044
Landcruiser
H
Nil
9
Bank accounts 14.1.11
W
3,108
10
Contents
W
10,000
11
[A] Super (14.1.11
W
39,833
12
Balance loans [L] Finance etc
W
Not known
13
Loan from parents
W
(160,000)
14
Net assets
84,507
The first issue is the value of the husband’s businesses, item 1 in the balance sheet. The wife asserts it should be $97,182, the husband says it should be nil. The main evidence in this regard is that of Mr M, who describes himself as a valuer/solicitor, and who provided an Affidavit filed 19 April 2010. He was the single joint expert in this matter until he was, in effect, “sacked” by the husband’s then solicitors, presumably on instructions by the husband. In any event he values the husband’s business ventures at $97,182 based on the evidence before him, this evidence (the expert asserts, as does the wife) being incomplete insofar as details provided by the husband are concerned.
I do not accept this valuation evidence. It is inexcusable that a valuer did not seek to interview the husband in circumstances of a case where the report raises issues about the regularity, and completeness, of the financial information provided to the valuer. Moreover, when the valuer was cross-examined about his familiarity with Lonergan,[1] a leading text on the science of valuation, he was plainly unconvincing in his responses, and I formed the distinct impression that the valuer was really not familiar at all with the leading texts about valuation, and was only aware of articles by Lonergan.
[1] Wayne Lonergan, The Valuation of Businesses, Shares and Other Equity (4th ed, 2003).
Moreover, the valuer agreed that the husband’s business is a one-man business that was dependent for its income on trailing commissions which were not assignable. He also agreed that after his report was completed, he had received further information about the termination of some of the contracts benefiting the husband in the business, and the valuer himself stated that this raises a question about the whole valuation.
I am fully aware that I have made findings against the husband about credit and non-disclosure. I am conscious of the fact that I have found his income and assets are probably not what he asserts. However, these findings cannot be allowed to overshadow the painful inadequacies in the valuation evidence. Quite frankly, I find it inconceivable that anyone would pay $97,000 for the husband’s business, as structured. It is artificial in the extreme to seek to attribute value to an income stream which is generated by one person and in circumstances where the income stream simply cannot be assigned. Clearly the husband’s business is a financial resource available to him, rather than property that can be assigned, realised, or encumbered. I am conscious of Counsel for the wife’s written submissions about this issue, and I fully accept that in other circumstances, such as an annuity, or a remainder interest in income producing property, and even in other cases, it may be quite logical to capitalise an income stream, but not on the facts of this case. In any event, there are far too many other methodological issues with the valuation for it to have any probative value. When one looks at paragraph 11 of the report, in which the valuer states the valuation, it is clear that the figure of $97,182 represents a multiple of three times of what he refers to as “the maintainable trailing commission trend of $32,394”. What is not clear is why this would form the basis of goodwill, independently of personal goodwill, when even the valuer acknowledges that the trailing commission is not assignable. Perhaps the explanation is that this represents “a value to the business owner”, but that is a very limited assistance in the present context. It is also unclear why the multiple is three, in the particular circumstances of this case? The valuer does not attempt to explain what is a trailing commission and, for example, whether a trailing commission trails indefinitely, or only for a finite period. Surely this information would have an impact on the multiple? Nowhere does the valuer explain whether there is a market, even a specialised market, for an assignment of trailing commissions. The valuation document itself is replete with grammatical, syntax and spelling errors and, with great respect, hardly presents as a professional document. But, in any event, the most fundamental issue with the valuation is that which is identified by the valuer himself, in the final paragraph, ie:
This valuation is highly qualified in view of the non provision of materials sought and re-sought.
Once again, I state that I understand that the consequence of this ruling is to prejudice the wife in a situation where I have made clear findings against the husband about non-disclosure. Be that as it may, determinations are made on evidence, and I cannot suddenly create property, or treat something as property, when it isn’t property. Clearly the husband’s business is a significant financial resource available to him in the context of a case where, in all likelihood, the husband has not disclosed property which is available to him but which would be available for distribution by the court if he were to disclose the same.
The valuation is nonetheless of assistance in other respects. For example, the evidence about the husband’s true income from his businesses, especially tables (ii) and (iii) at annexure C, suggest that his gross income through his business could be as high as $190,000 per annum. Indeed the husband’s own Financial Statement sworn 2 February 2011, filed by leave on 7 February 2011, deposes to an income from his combined business entities of nearly $162,000 per annum.
Returning to the balance sheet, items 2 and 3 represents the husband’s superannuation funds known to the court, and the figures are consistent with exhibit A6. These items should remain on the balance sheet.
Item 4 is the husband’s investment portfolio, but offset by item 5, the BT lending facility. A combination of these two items results in a deficit of $47,168. These are clearly post bankruptcy and post separation in nature, and thus should be excluded from the pool in the circumstances in this case, especially when the period of separation has been so long.
The unnumbered item, the [D] project, has an agreed value of $10,000, and no submission was made against its inclusion in the asset pool.
Item 7 purports to be the husband’s loan from his parents. I did not understand the husband’s Counsel to press for its inclusion in the pool. I agree. It is entirely post separation in nature, and in any event the evidence is unclear about whether, and if so, on what terms, it is repayable. For the same reason, however, I propose to exclude item 13 being the wife’s loan from her parents, and the evidence in this regard indicates that it was substantially attributable to legal costs incurred by the wife. The issue of recovering legal costs is an entirely separate one.
The inclusion of item 8, the husband’s bank accounts, appears to be common ground between the parties.
I do not propose to include in the pool either the husband’s Land Rover, or the debt attributable to it. This seems to be the common position of the parties, through their Counsel.
The inclusion of items 9, 10 and 11, proposed by the wife, is not opposed by the husband. The husband asserts that he has contents of $5000, and these too should be included in the pool.
Any credit card debts, of either of the parties, should be excluded from the pool, given the period of time that has elapsed since separation, and the absence of any specific evidence about these debts.
Having regard to my findings above, the pool of assets would be as follows:
No.
Item
Owned by
Value
1
[S] Super
H
8,424
2
[P] Super
H
63,916
3
[D] Project
H
10,000
4
Bank account
H
12,044
5
Contents
H
5,000
6
Bank accounts 14.1.11
W
3,108
7
Contents
W
10,000
8
[A] Super (14.1.11
W
39,833
Net assets
152,325
Superannuation
112,173 (74%)
Non superannuation
40,152 (26%)
In making these findings about the pool of assets, I cannot ignore the fact that the husband has the financial resource in the form of his business which enables him to financially structure his taxation affairs, to his benefit. In addition, I do not ignore the fact that he probably owes money to his parents, that his assets or income are probably not fully disclosed to the court. I do not ignore the fact that the wife probably owes money to her parents, and that she also probably owes money to creditors including the mortgagee. This is an unusual case, however, where the quantification of liability is unclear, but the existence of it is common ground. Thus, for example, the husband himself offers an indemnity as regards this debt and, in cross-examination, did not dispute that the wife was liable for it. The only clear evidence I have is that demand has been made on the wife for $70,832.34. But this was in respect of only one of the loans, and mortgages and in any event was a demand made on 20 December 2007, over three years ago. Still, given the husband’s concession, I cannot hold the lack of evidence about the current level of indebtedness against the wife, particularly in the circumstances of this case where the husband was such an active participant in her incurring the debt. In any event, I see no need to include this item in the balance sheet.
Contribution
Assessing contribution in a case like this is fraught with difficulty, and uncertainty. This is not only because the effect of the husband’s bankruptcy was to, in effect, erase the vast majority of their non-superannuation assets. But also because of the findings I make about the husband’s non-disclosure. In this case, contribution needs to be assessed in a holistic sense, and not just to a pool of assets which is acknowledged to be incomplete. When one looks at the contribution which each of the husband and wife asserts they made during the course of the marriage, as well as the losses incurred as a result of the husband’s bankruptcy, it is hard to assess this contribution as being other than equal. The wife does not assert, nor would I have accepted, that the husband’s bankruptcy was a negativing factor so far as his contribution was concerned. The wife’s Counsel does ask the court to accept, however, that the wife was not a party to the investment scheme involving the purchase of multiple properties and loans from [L], which were facilitated through [T]. Counsel for the wife asserts that it was never put to his client that she was a willing participant in this scheme, was aware of what was going on, or was an informed participant in the transaction. Clearly, on the husband’s own evidence, the wife’s role was limited to signing documents, but on the findings I have made, it is clear she did sign the documents. With hindsight, I’m sure she considers this as foolishness on her part, but when the evidence in this case is viewed overall, the husband made the major financial decisions throughout the course of the marriage, and she went along with this, for better or worse. That does not mean, however, that she was a party to what I would describe as the husband’s fraud perpetrated on [L]. On the evidence before me, I have no doubt that but for the fraud perpetrated by the husband, particularly in terms of the massive overstatement of the wife’s income, these transactions would not have gone through. Thus, if it is possible to say that one party made a greater contribution than the other to a liability, that is clearly the case in relation to any liability that the wife owes to the mortgage insurer or any other creditor emerging out of this failed fraudulent investment scheme.
How does this affect the assessment of contribution to the asset pool as I have found it, particularly noting that it excludes the debt arising out of the failed investment scheme? At a superficial level the husband’s indemnity might be thought to cover the wife’s debt, and thus lead to an assessment of contribution purely based on the available pool of assets. That is overly simplistic, however. An indemnity of the wife does not prevent her from having legal proceedings commenced against her, and suffering judgment, it merely enables her to join the husband as a third party in those proceedings. The husband’s indemnity is, therefore, clearly not insurance for the wife, but is, at most, a form of limited reassurance.
I’m still struck with the artificiality of having a discussion about contribution to the pool of assets as I have found it, in the circumstances of this case. Nonetheless, doing the best I can, the wife’s contribution should be assessed as at least 50 per cent.
I think the real issue in relation to assessment of contribution is that the husband has failed to adequately disclose what his real financial position is. The real problem is 50 percent of what?
Assessment of Section 75 (2) considerations
Again, there is a certain artificiality inherent in this exercise, in the circumstances of this case. Nonetheless, it is necessary. Whilst the wife is currently out of work, even she expressed confidence of being able to return to the workforce and of probably being able to earn the sort of income that she was earning before she lost her current employment. Based on her Financial Statement of 17 January 2011, however, her only source of income is Centrelink benefits together with child support at the rate of $187 per week paid by the husband. She deposes, and was not challenged, on her evidence, as to having weekly expenditure of $1,304 per week. Of this, $608 is directly attributable to the children, and that does not take into account any part of the Part G expenses in her Financial Statement, that might also be attributable to the children. What is clearly apparent from the wife’s Financial Statement is that the level of child support she receives each week ($187) is less than a third of her actual expenses relating to the children.
The husband’s Financial Statement sworn 2 February 2011 discloses an income of $3,115 per week and expenditure of $3,338 per week. There is no need for me to restate the considerable reservations that I have about any of the husband’s financial evidence, including his Financial Statement. It is interesting to note, however, that item 32 of his Financial Statement deposes to the total of all other expenditure being $750, when the equivalent amount for the wife is $913. When this is considered with the other evidence about the husband’s lifestyle as set out in the wife’s Affidavit filed 17 January 2011, and as the husband himself stated in his cross-examination, it does suggest that he has a lifestyle that is considerably better than that of the wife’s, thus reflecting a greater income as well as access to greater financial resources.
Pursuant to orders made by Steele J on 20 February 2007, the children live with the wife, and spend time with the husband a total of five nights each fortnight.
Overall, the husband has a higher earning capacity, has less responsibility for the care of the children, and in any event has proven himself to be a resourceful man capable of generating income notwithstanding less than satisfactory experiences with the Australian Taxation Office, the Australian Securities & Investments Commission and bankruptcy. Moreover, he has a financial resource available to him in the form of his business.
Both the husband and the wife owe their parents money, at least part of which is attributable to the cost of these proceedings.
Both of them have the possibility of proceedings being brought against them to recover moneys arising out of the failed investment scheme involving [T] and [L], in the case of the wife directly, and in the case of the husband, indirectly.
The pool of assets is a very small one, with superannuation comprising almost three quarters of the value of the total pool. Thus, even if I make the orders the wife proposes in relation to super splitting, it provides no immediate tangible benefit to her.
In this circumstances, a generous adjustment in the wife’s favour under section 75(2) is called for and I assess this adjustment to be 25 per cent.
A just and equitable order?
The result of my assessment of contribution and section 75 considerations would see the wife receiving 75 per cent of the pool of assets. Again, the artificiality of this exercise comes to the fore. Is it just and equitable to the wife to receive 75 per cent of the known pool, in circumstances where such clear findings have been made against the husband about non-disclosure? It was, of course, at all times open to the husband to be forthcoming in his disclosure to the court, but he has declined to do so. The authorities clearly state that the court is entitled to adopt a robust approach in assessing the evidence, contribution, and section 75(2) considerations in these cases. I do not interpret the authorities, however, to say that that I have carte blanche to do whatever I think is just and equitable and, as I have indicated elsewhere in these reasons, I cannot treat as property something which is not, and I cannot create property against which orders can be made, when there is no evidence of the existence of that property. There is, for example, no “notional property” in this case that can be added back on the basis that the husband once had it but has now disposed of it. It is plainly not that simple.
The combined effect of orders 1 and 2 of the orders proposed by the wife requires me to firstly, accept the evidence of the valuer, Mr M and, secondly to treat it as property. I have already held, however, that I cannot accept the valuation evidence, and that the husband’s business is more properly characterised as a financial resource available to him, rather than property. I thus cannot make the orders sought by the wife in this regard. Inherent in the wife’s proposed orders is a recognition that the only way that she could gain access to what she submits is property, i.e. the husband’s business, is if he makes 24 payments of $2,024.58 per month out of the commissions which represent a considerable part of the husband’s business. Thus, at least implicitly, the wife herself recognises the inherent difficulty of what she is asking the court to do.
In any event, the purpose of order 2, when seen in the context of the remaining orders for superannuation splitting, seems to be to provide the wife some sort of buffer against any claim being made against her arising out of the mortgaged properties and other loans, in a context where the indemnity proposed by her, and in effect agreed to by the husband, fails. The demand for payment against her is, however, uncertain rather than certain. She gives no evidence of any more recent claim for payment than three years ago. Thus, for example, it could not possibly be just and equitable as regards the husband if, hypothetically, he were to make the payments to the wife in accordance with her proposed order 2, and then have to indemnity the wife as regards the mortgage properties and any other loans as well.
It would not be just and equitable, in the circumstances of this case, to make order 2.
Order 3 seems to be common ground between the parties. I have already discussed the inherent limitations of the indemnity.
Order 4 is appropriate.
Moreover, it seems to me that orders 5 through to 20 inclusive, are also just and equitable in the circumstances of this case. In a case where the husband’s credit has been found wanting, and findings about non-disclosure made against him, he can hardly complain that the wife walks away with the lion’s share of what little assets there are. He will, after all, be left with his [D] project investment, his bank accounts, his contents and the financial resource consisting of his business. He will also be able to keep everything else that he has failed to disclose to the court. This gives to the wife just over 82 per cent of the known pool of superannuation and non-superannuation assets. This is only 7 per cent more than what I have assessed her entitlement to be but it represents the best that the court can do in the circumstances of this case. Quite frankly, if the wife had sought an assignment of the [D] project and the husband’s bank accounts she may well have had an arguable case to have these orders made in her favour, such are the court’s concerns about the level of the husband’s disclosure, and credibility generally.
The wife seeks orders for the husband to do certain things in relation to the children’s membership in the [omitted] health fund. There was no evidence about this issue at the hearing, and I could find no evidence about it in the Affidavits, accordingly I cannot make the orders sought.
I certify that the preceding seventy-two (72) paragraphs are a true copy of the reasons for judgment of Altobelli FM
Associate:
Date:
Schedule A
Minute of 3rd Amendment to Orders to be sought by the wife
Definitions
That the Court notes that in these orders:
a.“the mortgaged properties” means all real estate acquired in the name of the wife (either solely or jointly with any other person or entity) from the date of marriage to the date of these orders utilising borrowed funds from any source whatsoever in whole or in part;
b.“any other loans” means any loans borrowed in the name of the wife and obtained from any source whatsoever in whole or in part from the date of marriage to the date of these orders, whether or not secured by real estate.
c.“the business” means [M] Pty Limited, [W] Pty Limited, [A] Pty Limited, [F] Pty Limited and the [omitted] Family Trust;
d.“the lump sum” means the sum of $48,590 which is equivalent to 50% of the value of the husband’s interest in the business as valued by Mr M in these proceedings.
Property Settlement Orders
That the husband pay the lump sum to the wife in the following manner:
a.By depositing into a bank account nominated by the wife the sum of $2,024.58 per month for a period of 24 months, first payment due on the first day of the month following the making of these orders and monthly thereafter;
b.The husband is hereby restrained by injunction from doing any act or thing or causing any other person from doing any act or thing which would prevent or inhibit in any way the payments of commissions to the wife in accordance with Order 2(a); and
c.The husband shall ensure that the payments in accordance with Order 2(a) shall continue until a total sum equivalent to the lump sum is paid in full to the wife.
That the Husband indemnify and keep indemnified the Wife in respect of any claims for payment or repayment by any third party or entity concerning the mortgaged properties or any of them and any other loans as defined herein.
That subject to these orders each party otherwise is declared solely entitled to all other property and resources in their respective possession and control.
Superannuation Splitting Orders
[S] Super scheme
That the Court allocate as required by section 90 MT (4) of the Family Law Act 1975 (“the Act”) a base amount of $8,400.00 to the wife out of the interest of Mr Somers born [1966] (“the husband”) in the [S] Super scheme (“the [S] Fund”).
That in accordance with section 90 MT (1) (a) of the Act whenever a splittable payment becomes payable, the Trustee of the [S] Fund (“the [S] Trustee”) shall:
a.pay to the wife or the wife’s legal personal representatives the amount calculated in accordance with Part 6 of the Family Law (Superannuation) Regulations 2001; (“the Regulations”) and;
b.make a corresponding reduction in the entitlement the husband would have had in the [S] Fund but for this order.
That the [S] Trustee shall do all such acts and things and sign all documents as may be necessary to:
a.calculate in accordance with the requirements of the Act and the Regulations the amount to be paid to the wife pursuant to order 6 herein; and
b.pay the amount whenever the [S] Trustee makes a splittable payment out of the husband’s interest in the [S] Fund.
That these orders have effect from the operative date which is 5 business days after service of a sealed copy of these orders upon the [S] Trustee.
That the [S] Trustee shall do all acts and things and sign all documents as may be necessary so that in accordance with the obligations set out under the Act and Regulations, the [S] Trustee can calculate the amount due and make payment to the wife in accordance with orders 6 and 7 herein.
That the wife do all acts and things necessary, including but limited to, exercising her request pursuant to reg.7A.O6(1) of the Superannuation Industry (Supervision) Regulations 1994 for the rollover or transfer of the amount due out to her of the husband’s interest in the [P] Fund to a fund of the wife’s choice in accordance with reg.7A. 12 of the Superannuation Industry (Supervision) Regulations 1994.
That pursuant to reg.14F of the Regulations, any payments from the husband’s Superannuation interests made after the [S] Trustee has rolled over or transferred the amount due to the wife to a fund of the wife’s choice are not splittable payments.
Having been accorded procedural fairness, these orders require the [S] Trustee to observe the requirements of the Act and the Regulations.
[P] Super Fund
That the Court allocate as required by section 90 MT (4) of the Family Law Act 1975 (“the Act”) a base amount of $63,900.00 to the wife out of the interest of Mr Somers born [1966](“the husband”) in the [P] Super Fund (“the [P] Fund”).
That in accordance with section 90 MT (1) (a) of the Act whenever a splittable payment becomes payable, the Trustee of the [P] Fund (“the [P] Trustee”) shall:
a.pay to the wife or the wife’s legal personal representatives the amount calculated in accordance with Part 6 of the Family Law (Superannuation) Regulations 2001; (“the Regulations”) and;
b.make a corresponding reduction in the entitlement the husband would have had in the Fund but for this order.
That the [P] Trustee shall do all such acts and things and sign all documents as may be necessary to:
a.calculate in accordance with the requirements of the Act and the Regulations the amount to be paid to the wife pursuant to order 14 herein; and
b.pay the amount whenever the [P] Trustee makes a splittable payment out of the husband’s interest in the Fund.
That these orders have effect from the operative date which is 5 business days after service of a sealed copy of these orders upon the Trustee.
That the [P] Trustee shall do all acts and things and sign all documents as may be necessary so that in accordance with the obligations set out under the Act and Regulations, the [P] Trustee can calculate the amount due and make payment to the wife in accordance with orders 14 and 15 herein.
That the wife do all acts and things necessary, including but limited to, exercising her request pursuant to reg.7A.O6(1) of the Superannuation Industry (Supervision) Regulations 1994 for the rollover or transfer of the amount due out to her of the husband’s interest in the [P] Fund to a fund of the wife’s choice in accordance with reg.7A. 12 of the Superannuation Industry (Supervision) Regulations 1994.
That pursuant to reg.14F of the Regulations, any payments from the husband’s Superannuation interests made after the [P] Trustee has rolled over or transferred the amount due to the wife to a fund of the wife’s choice are not splittable payments.
Having been accorded procedural fairness, these orders require the [P] Trustee to observe the requirements of the Act and the Regulations.
General Orders
That within 14 days hereof the husband do all things necessary to transfer the children’s membership in [omitted Health fund] from his to the wife’s [omitted Health fund] policy.
That the parties do all acts and things necessary to fully implement these orders.
That in the event of either party failing to execute any document required to give effect to these orders within 7 days of being requested to do so by the other party, the Registrar or a Deputy Registrar of the Court shall be empowered pursuant to s.106A of the Family Law Act to execute such document on behalf of and in lieu of the party in default.
That the Husband pay the Wife’s costs of these proceedings.
Schedule B
Amended Response
That in accordance with Section 90ME(1)(b) of the Family Law Act 1975 (the Act) whenever a splittable payment within the meaning of Section 90ME of the Act becomes payable to or on behalf of the Respondent Husband from his interest in the [S] Super Scheme (the Scheme) the Applicant Wife is entitled to be paid by the Trustee of the Scheme (the Trustee) $16,000.00 of the splittable payment and there shall be a corresponding reduction in the amount of $16,000.00 the Respondent would be entitled to receive but for this Order.
The operative time for Order 1 is seven (7) business days after the service of the final order on the trustee.
That the Respondent Husband indemnifies and keep indemnified the Applicant Wife in respect of any claim for payment by any third party or entity concerning the mortgage properties or any of them.
That other than as herein provided, the Husband and Wife each be declared the sole legal and beneficial owners of all other items of property presently in their respective possession or control, including but not limited to money, shares, real property, motor vehicles, furniture, furnishings and personal effects.
That pursuant to Section 81 of the Family Law Act 1975 the parties intend that these Orders shall finally determine the financial relationship between them and avoid further proceedings.
In default of either or both of the Applicant Wife and the Respondent Husband doing all such things and executing all such documents and writings as may be necessary to comply with these orders, pursuant to Section 106A of the Family Law Act 1975, a registrar of the Family Court of Australia in Sydney shall be hereby appointed to do all such actions, things and execute all such documents, instruments and writings on behalf of either or both of the parties to give effect to these Orders.
Each party to pay their own costs of an incidental to their proceedings.
A Notation:
The Court notes that in these Orders, the mortgage properties means all real estate agents required in the name of the Applicant Wife, either solely or jointly with any other person or entity, during the marriage utilising borrowed funds from any source whatsoever in whole or in part.
0
0
2