ANWAR & MELAT - [2020] FamCA 1071

FAMILY COURT OF AUSTRALIA

ANWAR & MELAT

[2020] FamCA 1071

FAMILY LAW – PROPERTY – Final property orders – Where both parties seek orders for property distribution – Where the parties’ pool of assets is small – Where the husband was the primary income earner and the wife undertook homemaking and parenting responsibilities – Where neither party acknowledged the extent of the contributions of the other party – Where each party alleges non-disclosure on the part of the other party – Where the parties share the care of the parties’ children – Where the contents of the parties’ safe and the value of those contents are in dispute – Orders made for contents to be sold at an auction house and proceeds of sale distributed – Orders made for distribution of the parties’ property to be divided in the proportions of 57 per cent in favour of the wife and 43 per cent to the husband.

Family Law Act 1975 (Cth) ss 75, 79, 117
Child Support (Assessment) Act 1989 (Cth)
Evidence Act 1995 (Cth) ss 140(1), 156(1), Dictionary pt 1
Family Law Rules 2004 (Cth) rr 13.01(1), 13.04(1), 13.14, sch 1 pt 1 cl 1(6)

Ashton v Pratt (No 2) [2012] NSWSC 3
Bevan & Bevan (2013) FLC 93-545
Britt & Britt (2017) FLC 93-764
Chaudhary v Chaudhary [2017] NSWCA 222
Coghlan and Coghlan (2005) FLC 93-220
DJM v JLM (1998) FLC 92-816
Drewett & Drewett [2012] FamCA 320
Ermogenous v Greek Orthodox Community of SA Inc (2002) 209 CLR 95
Fazarri & Hsiao (No. 2) [2018] FamCA 447
Grefeld & Grefeld [2010] FamCA 504
Hadlow & Brosnan [2014] FCWA 23
Hearne v Hearne (2015) 53 Fam LR 454
Heydon v The Perpetual Executors, Trustees and Agency Co (WA) Limited (1930) 45 CLR 111
Hickey and Hickey and Attorney-general for the Commonwealth of Australia (Intervener) (2003) FLC 93-143
Hurst& Hurst (2018) FLC 93-851
Briese and Briese (1986) FLC 91-713
Efthimiadis & Efthimiadis (1993) FLC 92-361
Farnell and Farnell (1996) FLC 92-681
Kowaliw and Kowaliw (1981) FLC 91-092
Lee Steere and Lee Steere (1985) FLC 91-626
Marinko and Marinko (1985) FLC 91-609
Weir and Weir (1993) FLC 92-338
Jabour & Jabour (2019) FLC 93-898
Kennon v Kennon (1997) FLC 92-757
Kolar & Kermit [2019] FCCA 817
Livesey v Jenkins [1985] 1 All ER 106
Maine v Maine (2016) 56 Fam LR 500
Masters Home Improvement Pty Ltd v North East Solution Pty Ltd (2017) 372 ALR 440
Mayne & Mayne (2011) FLC 93-479
Mynatt & Siddall [2020] FamCA 40
Omacini and Omacini (2005) FLC 93-218
Petruski v Balewa (2013) 49 Fam LR 116
Quaresmini & Quaresmini [1999] FamCA 1314
S & S [2003] FamCA 905
Stanford v Stanford (2012) 247 CLR 108
Strand & Strand (No. 2) [2018] FamCAFC 247
The State of South Australia v The Commonwealth of Australia (1962) 108 CLR 130
Townsend and Townsend (1995) FLC 92-569
Trevi & Trevi (2018) FLC 93-858
Wallis & Manning (2017) FLC 93-759
Zao & Lee [2019] FamCAFC 169

APPLICANT:

Ms Anwar

RESPONDENT:

Mr Melat

FILE NUMBER:

SYC

7407

2016

DATE DELIVERED:

16 December 2020

PLACE DELIVERED:

Sydney

PLACE HEARD:

Sydney by web conference

JUDGMENT OF:

McClelland DCJ

HEARING DATE:

30-31 July 2020; 11 September 2020

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Ms Friedlander appearing on 30-31 July 2020.
The Applicant appearing in person on 11 September 2020.

COUNSEL FOR THE RESPONDENT:

The Respondent appearing in person.

Orders

That, within 30 days of the date of these Orders, the parties, Ms Anwar (“the wife”) and Mr Melat (“the husband”), shall do all acts and things necessary to enable the wife to receive from the BB Lawyers Controlled Money account BSB … Account Number …66 the amount of $177,721 and to enable the husband to receive the net balance of monies held in that account after payment of any costs associated with the establishment and maintenance of that account.
That, within 30 days of the date of these Orders, the wife is to return to the husband his laptop computer.
That, within 14 days of the date of these Orders, the wife is to instruct her previous solicitors, CC Lawyers, to pay to the husband an amount equivalent to 43 per cent of the foreign currency which they hold on behalf of the wife and to pay the balance to the wife.
That, within seven (7) days of the husband nominating, in writing to the wife, the name of an auction house, the wife is to instruct her former solicitors, CC Lawyers, to forthwith deliver to that auction house all items of jewellery, which that firm holds on behalf of the wife, with the wife to meet the costs of that service by CC Lawyers.
That the husband is to instruct the auction house to take all necessary steps to sell the items provided to them in accordance with Order 4 and to distribute the proceeds of sale to the parties such that the wife receives 57 per cent of the net proceeds and the husband receives 43 per cent.
That, within seven (7) days of the wife nominating, in writing to the husband, the name of an auction house, the husband is to deliver to that auction house the three (3) rings which are in his possession that were previously the joint property of the parties.
That the wife is to instruct the auction house to take all necessary steps to sell the items provided to them in accordance with Order 6 and to distribute the proceeds of sale to the parties such that the wife receives 57 per cent of the net proceeds and the husband receives 43 per cent.
That other than as otherwise set out in these Orders, the parties have the sole right, title and interest in any other property, including superannuation, which is at the date hereof in their possession, title or name.
That the husband and the wife do all acts and things and give all consents and execute all documents and writings necessary to give effect to the Orders made herein.
That, in the event that either party refuses or neglects to execute any deed or instrument, the Registrar of this Court be appointed, pursuant to s 106A of the Family Law Act 1975 (Cth), to execute such deed or instrument in the name of such party and to do all acts and things necessary to give validity to the operation to the deed or instrument.
That, unless otherwise specified in these Orders and except for the purposes of enforcing the payment of any money under these or any subsequent Orders:
(a)Each party be solely entitled to the exclusion of the other to all property, including choses-in-action, in the possession of such party as at the date of these Orders;
(b)Any money standing to the credit of the parties in a bank account are to be retained by the party in whose name the account appears;
(c)Each party hereby foregoes any claim they may have to any superannuation benefit that is belonging to or owned by the other save as provided for in these Orders;
(d)All insurance policies are to become the sole property of the owner named herein;
(e)Each party be solely liable for and indemnify the other against any liability encumbering any item of property to which that party is entitled pursuant to these Orders; and
(f)Any joint tenancy of the husband and the wife in any real or personal estate is hereby expressly severed.

Note: The form of the order is subject to the entry of the order in the Court’s records.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Anwar & Melat has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

Note: This copy of the Court’s Reasons for Judgment May be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: SYC 7407 of 2016

Ms Anwar

Applicant

And

Mr Melat

Respondent

REASONS FOR JUDGMENT

Introduction

This decision concerns an Application by Ms Anwar (“the wife”) seeking final orders for property distribution. In my view, this matter ought to have been straight forward, being in respect of a relatively small pool of assets belonging to the wife and her former husband, Mr Melat (“the husband”), after a 12-year relationship in which the husband had been the primary income earner and the wife had primarily undertaken responsibilities as homemaker and parent. It has been made more complex by the parties’ enmity for each other which has been exacerbated by the fact that both have failed to provide adequate disclosure. Despite the absence of evidence, both parties have alleged that the other has substantial undisclosed funds in overseas accounts. It has also resulted in both of the parties refusing to acknowledge the contributions made by the other during the course of their relationship. In addition, the husband alleges that the wife has removed certain items of property and cash from the parties’ safe which she retains in her possession. The husband has failed to discharge the evidentiary onus which he bears in that respect.
Ultimately, I have determined that, as a result of the substantially greater initial financial contribution of the husband, he should be entitled to a further three (3) per cent of the net value of the parties’ property pursuant to the considerations under s 79 of the Family Law Act 1975 (Cth) (“the Act”). However, the relevant s 75(2) considerations which the Court is required to consider, favour the wife such that I have determined that she will receive an adjustment of 10 per cent in her favour. This results in an outcome where the wife will receive 57 per cent of the parties’ property pool and the husband will receive 43 per cent.

Background

In 1971, the husband was born in City A, Country B. He is currently aged 49 years.
In 1982, the wife was born in City C, Country D. She is currently aged 38 years.
On 7 November 2001, the husband became an Australian citizen.
The husband sets out his employment history in respect of the period between 1996 and prior to the parties’ marriage as follows:
I always had a job since graduation from the University in 1996 and way before getting married in 2005. I was an employee of the E Corporation till October 2003 and then travelled to Country D and worked as a Marketing Manager for G Company in City F from November 2003 and until December 2004 and then a Trainer for the H Organisation based in City C before starting my career at the J Corporation in City F on 7 May 2005.
The husband was not challenged on the accuracy of that history. The husband’s employment history in the period subsequent to 7 May 2005 is set out below.
On 4 January 2005, the parties met. At the time, the husband was employed as a Trainer at the H Organisation’s office in City C.
The wife states that the parties married in June 2005 in City C and commenced cohabitating on 11 November 2005. The husband, however, contends that the parties were engaged on 3 June 2005 and married in November 2005. That difference is not material to my decision.
In respect of his initial financial contributions, the husband states:
10. Prior to us getting married, I owned the following:
a) Motor vehicle 1 to the value of $45,000
b) Savings of around $120,000 from my previous work in Australia, City F, City C and the H Organisation.
c) The balance of $23,780.49 of my Superannuation in Australia
d) Existing furniture in my apartment furniture to the value of $10,000
11. I have also made the below financial Contribution:
e) Golden, diamond and pearl Jewellery given to Ms Anwar as a wedding dowry to the value of $30,000
f) Wedding Ceremony Expenses including Wedding Party, Gowns and gifts to the value of $20,000
g) 2 Honeymoon Trips (Europe and the Middle East) $25,000
h) New furniture and decorations for the apartment to the value of $30,000.
Prior to and during the parties’ marriage, the wife attests to receiving gifts from her family and friends:
·    I received a gold wedding set ( necklace+earrings+ring+bracelet) all costs around AUD 4500 and diamond ring costs around AUD 1700
·    I received a diamond pendant costs around AUD1500 after giving birth
·    I received a 18k gold necklace costs around AUD 2600
·    The children received golden necklaces and bangles from my parents
·    I had anklets, rings, earrings, and bracelets from my parents and friends after and before getting married.
(As per original)
The husband states that the parties moved to City F, Country D on 25 November 2005. That evidence was not challenged.
In 2005, the wife obtained her bachelor’s degree from City K, Country D. The wife states that this degree qualified her as a technologist and that she received a scholarship to continue post-graduate studies. The husband contends that, pursuant to the regulations of Country D, the wife was required to undertake an exam and work for one (1) year to become qualified to work as a technician. According to the husband, the wife chose not to satisfy those requirements.
The wife, on the other hand, contends that the parties had agreed, at the commencement of their marriage, that the wife would look for employment and continue her studies to build her career, however, she attests to being “forced to stay and be full time mother and carer for [the husband’s] parents who were staying with [the parties], so [the husband] would continue working full-time…”. The wife also states that she had been forced to leave her home city and move to City F as the husband had found employment there and, as a result of the lack of support and her responsibility towards her family and her home, she was unable to complete her further studies. The husband denies the wife’s account and states that the parties had hired the assistance of a live-in nanny/maid and that his parents had visited on occasions to provide further assistance after the births of the parties’ children. The husband also contends that the wife was “happy to leave her family house”, however, states that the parties later moved from City F to City C to be closer to the wife’s family.
The wife was diagnosed with a medical condition in 2006 and was advised to take medication on an indefinite basis. The husband states that the wife was later prescribed an anti-depression medication “to help her cope with her Severe Anxiety and Depressive Disorder”. The wife alleges that her depressive condition has been caused or aggravated by the conduct of the husband which she contends constituted family violence.
In 2007, the parties’ child, X, was born in City F. He is currently aged 13 years.
In 2008, the husband and his sister, Ms L, purchased a two-bedroom villa in the outskirts of City C (“the City C property”). The wife contends that the husband was the sole owner of the City C property. The husband states that, as Ms L was not a resident of Country D, the husband and Ms L signed an agreement to have equitable shares in the City C property. The husband contends that the agreement also stipulated that Ms L would pay 50 per cent of the value of the City C property as a deposit and the husband would arrange for the remaining 50 per cent to be paid using a bank loan which, according to the wife, was in the sum of approximately Country D 750,000. The husband also attests to using his savings to pay the costs of stamp duty, registration and the real estate agent’s fees.
The parties resided in the City C property and the husband continued to make mortgage repayments until 2013, at which time the loan was paid in full.
In 2010, X was diagnosed with high-functioning autism. The husband deposes that the parties shared the responsibility of taking X to occupational therapy sessions until 2017.
In 2010, the parties’ child, Y, was born in City C. She is currently aged 10 years.
The wife deposes that she was the primary carer of the children and describes her role as “a 24-hour a day occupation” which thereby prevented her from certainty in her career. The wife attests to having “looked after the children, changing nappies, comforting, feeding, getting up during the night” and states that the husband, on weekends and during holidays, “chose to meet his friends, going to the gym, playing sports and not joining [the wife and the parties’ children]” while they visited friends or family. The wife also states that the husband would leave their home for work at 6.00 am and return at 8.00 pm, after which he would either watch television or go to the gym. Accordingly, the wife contends that, except for occasionally receiving “cleaning help from outside”, she rarely received assistance for household tasks such as cleaning and cooking.
As noted above, the husband contends that the parties hired a nanny to assist the wife and otherwise attests to being “involved in all aspects of raising the children” as a result of the wife’s mental health challenges, including:
a) Feeding and burping them, as infants, as well as changing diapers and bathing them
b) Putting them to bed;
c) Checking up on them while sleeping, at least a couple of times a night;
d) As they were growing, [the husband] continued helping them with all their daily activities, including feeding, bathing, playing as well as helping with their homework and studies;
e) Taking them on outings, cinemas and theatres and trips around the world
f) Dressing and changing them for all occasions.
g) Teaching them at home and quizzing them as well as assisting them with all their assignments
h) Taking them to sports and all extra-curricular activities including swimming, and martial arts
In 2012, the parties moved out of the City C property and into rental accommodation in City C. The City C property was put on the market to be leased and the husband states that he collected rent and distributed it between himself and his sister, Ms L, until the City C property was sold.
According to the wife, prior to relocating to Australia, the wife received financial support from her family, which enabled the husband to “save more money”.
On 22 November 2013, the husband states that he deposited $65,000 of his savings in Country D into a bank account with the Commonwealth Bank of Australia (“CBA”) and, on 29 November 2013, the husband states that he deposited a further $177,000 into that CBA bank account.
On 30 November 2013, the parties moved to Australia with their children.
The husband states that he remained in his City C employment until May 2014 before re-joining E Corporation in October 2014.
Upon their arrival in Australia, the parties and their children resided with the husband’s sister in Suburb M in the State of New South Wales. The wife contends that this arrangement continued for approximately three (3) months. The husband, however, states that the parties stayed with his sister until 13 January 2014, being the date on which the husband’s purchase of a property, located at N Street, Suburb O (“the Suburb O property”), was completed. At that time, the parties commenced residing in the Suburb O property. The husband was the sole owner of the Suburb O property.
The wife states:
[The husband] did no housework, or cooking, washing or ironing. While I was doing these things at night, as well as taking the children to schools and child care, feeding or bathing , playing, teaching them , [the husband] would watch television until going to bed . His eldest sister who came from [Country B] stayed with us for a long period of time and I had to be the carer for her , yet [the husband] would complain that I had not got the dishes washed or put his socks away in his drawer.
The husband, however, contends that he was “fully responsible for garden work, pool cleaning and maintenance as well as arranging servicing of the two cars and all household maintenance and repair, including painting and wallpapering”. The husband also attests to sharing the housework and the care of the parties’ children with the wife. The husband states that he ensured that he “helped [the wife] as much as [he] could with the children after their return from school/day-care and [he] had full responsibility for all housework and maintenance, except cooking”.

The wife contends that, in 2014, she was solely responsible for caring for the children and the parties’ property while the husband travelled to City C and remained there for almost three (3) months immediately prior to him resigning from his employment in City C. The husband, however, states that he was away from Australia for the period 14 February 2014 to 1 April 2014.
In October 2014, the husband commenced employment with the E Corporation.
In April 2015, the wife became an Australian citizen.
In 2015, the husband sold the Suburb O property and purchased a property located at P Street, Suburb Q (“the Suburb Q property”). The husband was the sole owner of the Suburb Q property. The parties borrowed funds from the National Australia Bank (“NAB”) and a mortgage in favour of NAB was secured against the Suburb Q property.
The wife contends that, in 2015, the husband was suspended from his employment in Australia “due to illegal actions”. The husband deposes that the wife’s claim is untrue. The husband contends that, on 26 October 2015, he reported a bullying and harassment incident and was granted paid leave while the issue was being investigated and until it was successfully resolved in his favour.
From 20 June 2015 until 1 October 2016, the wife’s brother, Mr R, resided with the parties and their children in the Suburb Q property. The wife contends that her brother paid approximately $300 per week to the husband during his stay and that the husband “kicked [her] brother out of the house in a very aggressive way”. The husband, however, contends that Mr R did not pay any contributions to the parties “until a few months after he found a job in July 2016” other than in the form of $150 per week for groceries and living expenses while the husband was on leave. The husband also contends that Mr R “turned very violent and aggressive against [him] starting 25 September 2016” and that he asked Mr R “politely” to leave the Suburb Q property.
The wife contends that, when the children commenced school, the wife attended all school meetings, activities, athletic, swimming and cross country carnivals and assemblies and volunteered at family fun day events. This participation included, in mid-2015, helping in literacy groups in Y’s classroom for a total of four (4) hours per week.
In 2016, the parties’ son, X, commenced occupational therapy sessions at S Therapy. The wife attests to taking X to these sessions and paying for all his sessions while the husband, as stated above, attests to “sharing the responsibility of taking him to occupational therapy sessions up until 2017 when he showed so much progress to be fully functioning”.
In April 2016, after the husband returned from a trip to Country D, the wife contends that the parties were distant and that her attempts to reconcile were met with “abuse, balme [sic] and humiliation”. The wife states that, at that time, the husband “was suffering from deep depression which worsened his usual abusive behaviors [sic] towards [the wife] and the children”.
In mid-2016, the husband states that the wife surprised him with a birthday party, cake and a birthday card which read, “You are my man, husband, friend, sister, brother and my father and my first & last forever love. I love you so much & life without you is tasteless”.
The husband contends that, until August 2016, the parties had a “happy and healthy relationship” and that, after that time, there was a “sudden change” in the wife’s character and personality which led to the parties becoming distant. The husband further attests to being the party that made reconciliation attempts that were ultimately unsuccessful.
The husband states that, in or around August 2016, he attempted to open the parties’ safe to retrieve documents from within, however, the code, which was known to both parties, did not unlock the safe.
On 25 September 2016, the parties separated but continued to reside in the Suburb Q property together until mid-December 2016.
The wife contends that, in November 2016, the husband unilaterally increased the mortgage secured over the Suburb Q property. In that respect, the husband states that funds were borrowed from his sister, Ms T, and deposited into the offset account that was linked to the parties’ NAB home loan to reduce the amount of the repayments due fortnightly. The funds withdrawn from the mortgage over the Suburb Q property in the sum of $102,000 were, according to the husband, used to repay Ms T so that she was able to purchase an investment property.
On 10 November 2016, the wife filed an Initiating Application in the Federal Circuit Court of Australia.
On 14 November 2016, the husband attests to being served with the documents that the wife had filed to initiate proceedings in the Federal Circuit Court.
On 15 November 2016, the husband states that he brought the parties’ locked safe to a locksmith who opened the safe in the husband’s presence. The husband attests to the safe being empty. In respect of what ought to have been in the safe, the husband describes the contents as being “all [of the parties’] gold, jewellery belongings, some cash, as well as important legal documents”. That afternoon, the husband called the police to report the incident. The husband sets out his version of the event as follows:
When the police arrived, they questioned me and [the wife] about the incident and the fate of the items in the safe. [The wife] denied any knowledge of the whereabouts of the missing items, as stated in the police report of that incident. Further, [the wife] neither seemed upset to have lost all of the gold and cash nor did she seem concerned that all of our important documents were missing.
The husband also attests to filing an application to cancel his Australian passport and receive a replacement as a result of his concerns as to the whereabouts of the safe contents, which became the subject of investigation by the Passports Fraud section of the Department of Foreign Affairs and Trade. The wife states that the husband also cancelled the children’s passports despite his knowledge that those passports were in the wife’s possession.
On 1 December 2016, consent Orders were made for the Suburb Q property to be sold and the proceeds of sale to be applied as follows:
a) In adjustment of rates including water and council rates on settlement;
b) In payment of agent’s commission on sale;
c) In payment of legal and other costs on sale;
d) In payment of any mortgage encumbered against the property;
e) Interim payments to the Husband and Wife of 25% each;
f) Remainder of proceeds to be placed into a controlled monies account setup in the names of both parties pending final settlement
The husband attests that, at the parties’ court event on 2 December 2016 before Judge Monahan, the wife’s solicitors were questioned by Judge Monahan in respect of the contents of the parties’ safe, to which the wife’s solicitor responded with “something to the effect of the safe was locked, had not been opened and that [the wife] had not removed the contents of the safe”.
On 5 December 2016, the husband’s solicitor, at the time, received a letter from the wife’s solicitor, at the time, which stated:
Our client has reviewed the contents taken from the safe and we advise that they are as follows:
a. your client’s current passport and several expired ones
b. 2,500 British pounds in cash
c. Documents related to X’s health issues
d. Our client’s jewellery consisting primarily of a wedding necklace, rings and earrings.
e. Y’s bracelet.
…
Our client had already removed the contents of the safe. As such His Honour’s direction that she not open the safe could not be followed.
On 6 December 2016, Judge Monahan made Orders, inter alia, for the parties’ children to live with each party in the Suburb Q property pending the sale of the property. The following Orders were also made by Judge Monahan:
7. The [wife] secure alternate accommodation for herself or the parties to occupy [while not residing with the children in the Suburb Q property] by not later than 22 January 2017, and upon securing that accommodation, forthwith provide written notice to the [husband] of same as well as providing a copy of the proposed lease or a letter from the relevant agent outlining the proposed terms of the lease.
8. Upon the [wife] giving notice to the [husband] referred to in paragraph 7 herein, the [husband] pay the following monies to the [wife] up until such time as the [wife] receives the interim property distribution pursuant to the Orders made 1 December 2016:
a. A rental bond of the equivalent of four (4) weeks rent in the sum of no more than $2,000.00;
b. Four (4) weeks rent in advance in the sum of no more than $2,000.00; and
c. Thereafter, $500.00 per week by way of reimbursement for rental payments;
with such monies only to be used for the above-mentioned purposes.
9. In the event that the [wife] does not consent to the [husband] occupying the alternate accommodation she obtains pursuant to paragraphs 7 and 8 herein, then she is to advise the [husband] in writing by no later than fourteen (14) days before the commencement of the interim parenting orders pursuant to paragraph 6 herein or by no later than 8 January 2017, whichever occurs first, and thereafter, the [husband] immediately secure alternate accommodation for himself to live when not otherwise living with the children in accordance with these orders.
In satisfaction of Order 8 of the orders made on 6 December 2016, the husband states that, until the Suburb Q property was sold in April 2017, he paid a bond in the sum of $1,680 and made payments of $420 per week to the wife in respect of her rental accommodation. The husband also attests to having to pay for rental accommodation for himself to reside in while not living in the Suburb Q property.
In April 2017, the Suburb Q property was sold and the proceeds of sale were distributed as follows:
·U Council – $735.08
·Sydney Water – $267.49
·NAB A/C [in the husband’s name] – $870,600.63
·V Lawyers – $1,778.43
·W Group, Suburb Z – $28,385.00
·BB Lawyers Trust Account – $126,053.68
·[The husband] – $123,218.68
·V Lawyers – $6,750.00
·[The husband] and [the wife] Controlled Monies Account – $111,107.36
Since the sale of the Suburb Q property, both parties have been residing in rental accommodation with the children while they are in the respective care of each party.
Since 17 April 2017, the husband has been required to pay child support as assessed under the Child Support (Assessment) Act 1989 (Cth).
The husband states that he is required to pay child support in the amount of $457 per month. The wife contends that, since the parties’ separation in 2016 to date, the husband’s payment of child support has consisted of “irregular and random amounts” and that there are monies owed in respect of child support that remain overdue. Alternatively, the husband contends that he has continued to be on top of his child support obligations such that there is always extra credit in his account, save for in respect of a period between 15 December 2018 to 11 February 2019, during which the wife travelled to City C and the husband’s percentage of care of the children increased to 100 per cent, resulting in “a temporary stop in the child support repayment to offset that period”.
The husband contends that, on 26 December 2017, the City C property was sold for Country D 1,400,000. Two (2) cheques were received from the buyer in that respect and addressed to the husband for Country D 633,000 and to Ms L for Country D 700,000. The wife disputes the husband’s evidence that the property was sold in 2017.
The husband states that, in November 2018, he was informed by the purchaser of the City C property that the wife and her family had visited his tenant requesting information on the owner of the City C property and an old tenancy agreement.
On 26 March 2019, parenting Orders were made by consent providing for the parties to have equal shared parental responsibility for their children and for the children to live with each party in a two-weekly cyclical arrangement as follows:
·During the school term:
oWith the wife from 10.00 am on Sunday until the commencement of school on Thursday in week one (1) and from 5.00 pm on Sunday until the commencement of school on Thursday in week two (2);
oWith the husband from the conclusion of school on Thursday until 5.00 pm on Sunday in week one (1) and from the conclusion of school on Thursday until 10.00 am on Sunday in week two (2);
Save for one (1) weekend per month as nominated by the wife during which the husband’s time with the children ends at 5.00 pm on Saturday instead of 10.00 am on Sunday; and
·During school holidays, with each party for either the first or second half of the holiday period depending on whether it is an odd or even numbered year.
The consent Orders made on 26 March 2019 also provided for the parties to arrange for the children’s passports to be renewed.
In regards to overseas travel subsequent to the parties’ separation, both parties contend that the other has undertaken extensive travel. The wife states that the husband “left [the children] with [her] several times while he was either in City C or USA for holidays” including during the following periods:
Dec-Jan 2017/2018 City C/England
Feb-March 2019 USA
14-20 Nov 2019 China-City C-Sydney
The husband, however, contends that he attempted to arrange for passports to be issued for the children, in accordance with the Orders made on 26 March 2019, to allow the children to travel with the husband and visit family in England and, when his attempts were unsuccessful, that he travelled alone for two (2) weeks in December 2017 and, again, for two (2) weeks in March 2019. Conversely, the husband states that, in September 2018, the wife travelled to City C for a period of three (3) weeks and, in December 2018 until mid-February 2019, the wife travelled to City C again without providing notice to either the husband or the parties’ children.

Applications

Orders sought by the wife

The wife seeks that orders be made in accordance with those set out in respect of property in her Initiating Application filed 10 November 2016, as follows:
1. That the That the Wife retain 70% of the net value of the non-superannuation matrimonial asset pool.
2. That the Wife retain 50% of the overall superannuation pool.
3. That other than as otherwise set out in this agreement the parties have the sole right title and interest in any other property which is at the date hereof in their possession title or name and they shall be solely liable for and indemnify the other against any personal liabilities.
4. That the respondent and applicant do all acts and things and give all consents and execute all documents and writings necessary to give effect to the orders made herein.
5. That in the event that either party refuses or neglects to execute any deed or instrument, the registrar of the court be appointed pursuant to section 106A of the Family Law Act 1975, to execute such deed or instrument in the name of such party and to do all acts and things necessary to give validity to the operation to the deed or instrument.
6. That unless otherwise specified in these orders and except for the purposes of enforcing the payment of any money under these or any subsequent orders:
(a) Each party be solely entitled to the exclusion of the other to all property, including choses-in-action, in the possession of such party as at the date of these orders;
(b) Any money standing to the credit of the parties in a bank account are to be retained by the party in whose name the account appears;
(c) Each party hereby foregoes any claim they May have to any superannuation benefit that is belonging to or owned by the other save as provided for in these orders;
(d) All insurance policies are to become the sole property of the owner named hereon;
(e) Each party be solely liable for and indemnify the other against any liability encumbering any item of property to which that party is entitled pursuant to these orders; and
(f) Any joint tenancy of the husband and wife in any real or personal estate is hereby expressly severed.

Orders sought by the husband

The husband seeks that orders be made in accordance with those set out in Part E of his case outline document provided to the Court by email dated 27 July 2020, as follows:
1. That within 30 days of the date of these orders, the parties are to do all things and acts to enable them to receive from the BB Lawyers Controlled Money account BSB … Account Number …66 the following amounts: the Respondent Husband is to receive half the current balance of the account plus $64,680 and the Wife is to receive half the current balance of the account less $64,680. The parties are to equally pay half the incurred costs of maintaining the account.
That within 30 days, of the date of these orders, Alan Blumberg, solicitor, pay an amount equal to half the balance of the account plus $50,000 to the Respondent Husband and half the balance of the account less $50,00 to the Applicant Wife from the BB Lawyers Controlled Money account BSB … Account Number …66.
~~2. That the Applicant Wife pay the Respondent Husband an amount of $1,680 which was provided to the Wife in December 2016 as a Rental Bond.~~
3. That the Applicant Wife provide the Respondent Husband with a copy of all family videos and photographs, with the Respondent Husband paying the Applicant Wife the cost of any substantiated copying expenses.
4. In addition, the Applicant Wife is to return to the husband the Panasonic video camera and Sony digital camera, and the Respondent’s white Toshiba laptop computer, all items to be returned in good working order.
5. That the Applicant Wife provide to the Respondent Husband, certified copies of the children’s Birth Certificates, as per Order 19 of 26 March 2019.
6. That from the date of payment to the Respondent Husband of money in accordance with Orders 1 above and unless otherwise specified in this Order except for the purposes of enforcing payment of any money due under these or any subsequent Orders:
a. Each party shall be solely entitled to the exclusion of the other to all property in the possession of such party as at this date including any jewellery, furniture, furnishings, shares and motor vehicles.
b. Moneys standing to the credit of the parties in any bank accounts to be the property of the party in whose name such bank account is held.
c. Each party hereby foregoes any claims they May have to any superannuation benefit to or owned by the other. The party in whose name any such policy of superannuation or insurance stand shall be deemed to be the owner and the beneficiary of such policy to the exclusion of the other.
d. Each party be solely liable for and indemnify the other against any liability encumbering any item of property to which that party is entitled pursuant to this Order.
7. That:
a. Each party shall do all acts and things reasonably required by the other including the signing or execution of all necessary documents to give effect to the provisions of this Order within 14 days of being requested to do so.
b. If either party refuses or neglects to sign or execute and return a document within 14 days of a written request to do so then the Registrar of the Sydney Registry of the Family Court is hereby appointed under Section 106A of the Family Law Act 1975 to sign or execute such document on behalf of that party upon lodgement of such document and the filing of an affidavit ~~of a solicitor~~ on behalf of the requesting party as to the said neglect or refusal.
c. A defaulting party shall pay the other party’s taxed costs of and incidental to such request and production of documents to the Registrar.
8. That all pending Applications be dismissed.
9. That the Wife pay the Husband’s costs of defending this application on an indemnity basis.
~~That each party pay their own costs of and incidental to these proceedings and any outstanding order for costs against either party be and is hereby discharged.~~
10. That either party have liberty to apply as to implementation or enforcement of these orders upon the giving of 7 days written notice to the other.
NOTATION
A. The Court notes that $50,000 is roughly half the value of the contents of the safe, previously taken by the Applicant Wife and kept by her.
B. The Court notes that the Husband’s Costs total costs of defending this application were $18,000 plus GST and that he currently owes the amount of $13,000 plus $1,800 GST.
C. The Court notes that the husband lent the wife an amount of $1,680 in 2017 to be used as a bond for her rental property.

By his Application in a Case filed 18 June 2020, the husband also sought an order that “the final hearing of this matter on 31, 31 July 2020 be heard on an undefended basis, with only the Respondent Husband providing evidence”.

Evidence

The wife relied upon the following documents:
a)Initiating Application filed 10 November 2016;
b)Affidavit of the wife filed 22 May 2020;
c)Financial Statement of the wife filed 22 May 2020;
d)Balance sheet filed 10 December 2019;
e)Undertaking as to disclosure of the wife filed 19 August 2020; and
f)Written submissions of the wife provided to the Court by email dated 9 September 2020.
The husband relied upon the following documents:
a)Application in a Case filed 18 June 2020;
b)Affidavit of the husband filed 12 June 2020;
c)Amended Response to Initiating Application filed 23 July 2020;
d)Affidavit of the husband filed 4 May 2020 (“trial Affidavit”);
e)Affidavit in reply of the husband filed 12 June 2020 (“reply Affidavit”);
f)Affidavit of Ms T filed 29 April 2020;
g)Balance Sheet filed 23 July 2020;
h)Balance Sheet filed 28 July 2020; and
i)Financial Statement of the husband filed 29 April 2020.
The following exhibits were relied upon:
a)DD Bank bank statement of the wife for account ending …72 dated 6 July 2018 (‘Exhibit 1’);
b)DD Bank bank statement of the wife for account ending …72 dated 6 July 2019 (‘Exhibit 2’);
c)DD Bank bank statement of the wife for account ending …72 dated 6 October 2017 (‘Exhibit 3’);
d)Tax return of the wife for the financial year ending 30 June 2017 (‘Exhibit 4’);
e)Tax return of the wife for the financial year ending 30 June 2018 (‘Exhibit 5’);
f)Tax return of the wife for the financial year ending 30 June 2019 (‘Exhibit 6’);
g)Tax invoice from S Therapy dated 22 February 2016 (‘Exhibit 7’);
h)Tax invoice from S Therapy dated 6 April 2016 (‘Exhibit 8’);
i)Tax invoice from S Therapy dated 14 November 2016 (‘Exhibit 9’);
j)Tax invoice from S Therapy dated 8 February 2017 (‘Exhibit 10’);
k)Screenshot of total superannuation balance as at 30 June 2020 (‘Exhibit 11’);
l)Two-page extract of National Australia Bank (“NAB”) statement of the husband for account ending …25 for the period 23 September 2016 to 11 November 2016 (‘Exhibit 12’);
m)Extract of NAB statement of the husband for account ending …51 for the period 26 October 2016 to 14 November 2016 (‘Exhibit 13’);
n)Addendum to Form F dated 20 July 2019 (‘Exhibit 14’);
o)Property Sales Contract between Seller and Buyer in respect of the property located in EE District in City C, Country D executed on 20 August 2019 (‘Exhibit 15’);
p)Text messages dated 13 November 2019 (‘Exhibit 16’);
q)Tender bundle of the husband (‘Exhibit 17’);
r)CBA bank statements of the husband for account ending …31 and CBA bank statements of the husband in respect of a Variable Rate Personal Loan and account ending …45 (‘Exhibit 18’);
s)Tax returns of the husband (‘Exhibit 19’);
t)Additional tender documents of the husband (‘Exhibit 20’);
u)Written submissions of the wife provided to the Court by email dated 9 September 2020 (‘Exhibit 21’);
v)Balance sheet of the husband dated 28 July 2020 (‘Exhibit 22’);
w)Case outline document of the husband provided to the Court by email dated 27 July 2020 (‘Exhibit 23’); and
x)DD Bank bank statement of the wife for account ending …73 dated 6 July 2020 (‘Exhibit 24’).

Proceeding on an undefended basis

On the first day of the final hearing of this matter, counsel for the husband pressed the husband’s Application in a Case filed on 18 June 2020 seeking an order for the matter to be heard on an undefended basis. The premise upon which that order was sought was the husband’s contention that the wife has failed to comply with her obligations of disclosure.
On 30 July 2020, being the first day of the hearing, I dismissed the husband’s Application and stated that I would provide my reasons for doing so in this decision.
Each party in family law proceedings has an obligation to disclose all relevant information concerning their claim to the other party. That duty is also owed to the Court. Compliance with that obligation is fundamental to the effective operation of this Court. The duty of disclosure in family law proceedings exists both at common law and pursuant to statute.
In Briese and Briese (1986) FLC 91-713 at 75,181, Smithers J applied the House of Lords decision in Livesey v Jenkins [1985] 1 All ER 106 in determining that:
… in financial proceedings between spouses each party must make a full and frank disclosure of all material facts. In that case it was made clear that full and frank disclosure was required as a matter of principle in the light of the fact that it was the duty of the Court, taking into account a number of designated criteria, to make a decision which basically involved the exercise of a discretion.
(Emphasis added)
His Honour further stated at 75,181:
In my view it is fundamental to the whole operation of the Family Law Act in financial cases that there is an obligation of the nature to which I have referred. Livesey v. Jenkins makes it clear that mere compliance with rules of court or practice directions does not alter the basic principle of the need for full and frank disclosure by the parties.
(Emphasis added)
In that regard, r 13.01(1) of the Family Law Rules 2004 (Cth) (“the Rules”) relevantly provides that:
… each party to a case has a duty to the court and to each other party to give full and frank disclosure of all information relevant to the case, in a timely manner.
Further, r 13.04(1) of the Rules relevantly provides that:
A party to a financial case must make full and frank disclosure of the party’s financial circumstances, including:
(a) the party’s earnings, including income that is paid or assigned to another party, person or legal entity;
…
(g) any disposal of property (whether by sale, transfer, assignment or gift) made by the party, a legal entity mentioned in paragraph (c), a corporation or a trust mentioned in paragraph (f) that may affect, defeat or deplete a claim:
(i) in the 12 months immediately before the separation of the parties; or
(ii) since the final separation of the parties; and …
Paragraph (6) of cl 1 of Pt 1 of Sch 1 of the Rules relevantly provides:
(6) At all stages during the pre-action negotiations and, if a case is started, during the conduct of the case itself, the parties must have regard to: …
(i) the duty to make full and frank disclosure of all material facts, documents and other information relevant to the dispute.
Note: The duty of disclosure extends to the requirement to disclose any significant changes (see clause 4 of this Part).
(Emphasis added)
The fact that the obligation of disclosure exists as a duty to the Court, as well as the other party, is significant. It is also significant that the obligation is in respect of the disclosure of “information relevant to the dispute”, not simply one that attaches to the production of documents.
In Hadlow and Brosnan [2014] FCWA 23, Walters J noted at [187]:
… a judicial officer is entitled to take a “robust view” in relation to findings regarding a party’s financial position (including a party’s capacity to meet any proposed order) where that party has failed to make full and frank disclosure of his/her financial position: see Chang v Su [(2002) FLC 93-117] at [71] and [72].
In Efthimiadis & Efthimiadis (1993) FLC 92-361 at 79,804, the Full Court said:
So far as the wife is concerned, there is no doubt that she should be treated as substantially understating her income… The circumstance that the wife had a significantly greater income that she deposed to was very damaging to her on issues of credit overall and virtually ensured that she was put out of Court so far as s75(2) factors were concerned.
In Weir and Weir (1993) FLC 92-338 at 79,593, the Full Court stated:
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.
Rule 13.14 of the Rules relevantly provides:
Consequence of non-disclosure
If a party does not disclose a document as required under these Rules:
(a) the party:
(i) must not offer the document, or present evidence of its contents, at a hearing or trial without the other party’s consent or the court’s permission;
(ii) may be guilty of contempt for not disclosing the document; and
(iii) may be ordered to pay costs; and
(b) the court may stay or dismiss all or part of the party’s case.
As noted by the Full Court in Zao & Lee [2019] FamCAFC 169 at [29] (“Zao & Lee”), “Rule 13.14 is similar to r 11.02 in that if a party does not disclose a document as required under the Rules, the Court may stay or dismiss all or part of the party’s case”. The husband’s Application in the matter to proceed on an undefended basis is, effectively, an Application to dismiss the wife’s case.
The Full Court further said at [41]-[45]:
Rule 11.02 and r 13.14 permit an order dismissing all or part of a party’s case and in the latter case, on the ground of non-disclosure. However, r 13.14 also provides that where a party does not disclose a document, that party must not offer the document or present evidence of its contents at a hearing without the other party’s consent or the Court’s permission. Also if they do not disclose a document as required under the rule, they may be liable to proceedings for contempt and costs (r 13.14 (a) of the Rules).
Dismissal of proceedings is therefore a last resort.
Further, in coming to a determination of what property orders are just and equitable, the court may take into account a party’s failure to disclose relevant documents (Black and Kellner (1992) FLC 92-287; Weir & Weir (1993) FLC 92-338).
It follows that if the proceedings proceed the husband’s failure to disclose documents will not be ignored and may have severe consequences for him.
As her Honour pointed out and as is well established, courts are justifiably reluctant to summarily dismiss proceedings (see, for example, the discussion by Kirby J in Lindon v The Commonwealth (No 2) (1996) 136 ALR 251 at 256). This reluctance is taken into account at [41] of the reasons where the primary judge expresses reluctance in denying the husband the opportunity to be involved in the proceedings without first giving him the opportunity to adduce evidence and presumably, if necessary, for the strength of that evidence to be assessed.
In considering the husband’s Application for the matter to proceed on an undefended basis, it is significant that the Application was made in circumstances where the wife similarly alleged non-disclosure on the part of the husband. I was not, at the commencement of these proceedings, in a position to determine the extent of each party’s non-disclosure and, on that basis, I indicated to the parties that I was not satisfied that the time had come for me to exercise what the Full Court described as a course of “last resort” by acceding to the husband’s Application. I, therefore, dismissed the husband’s Application and indicated to the parties that, as noted by the Full Court in Zao & Lee, the issue of non-disclosure may nonetheless be a very relevant issue in considering the evidence presented of each of the parties and, ultimately, the orders made in the proceedings.
As it turned out, during the course of the proceedings, I became satisfied that the issue of non-disclosure in this matter was a case of both parties having been derelict in respect to their obligations of disclosure. Paradoxically, that omission was substantially corrected by the wife during the course of the proceedings, however, the Court expressed considerable concern that the husband did not, in these proceedings, disclose the totality of rental income which he received in respect to the City C property that he owned jointly with Ms L.

Property adjustment

The law – concepts and principles

Subject to s 79(2), s 79(1) of the Act empowers the Court in property proceedings to “make such order as it considers appropriate”. However, neither the fact of marriage nor the ending of a marriage creates an assumption that there should be an adjustment of the parties’ property interests: see Fazarri & Hsiao (No. 2) [2018] FamCA 447 at [75]–[76] citing Stanford v Stanford (2012) 247 CLR 108 (“Stanford”) at 121 [39] (per French CJ, Hayne, Kiefel and Bell JJ).
Section 79(2) of the Act provides that the Court shall not make an order altering the interests of the parties to the matrimonial property unless the Court is satisfied that, “in all the circumstances, it is just and equitable to make the order”.
That issue is to be determined having regard to “a range of potential competing considerations”: see Stanford at 120 [36], including the parties’ contentions regarding their contributions, assessed in accordance with the legislative guide set out in s 79(4) of the Act. The plurality in Bevan & Bevan (2013) FLC 93-545 rejected the notion that s 79(2) of the Act forms a threshold issue before undertaking an assessment of considerations in accordance with s 79(4): see Hearne v Hearne (2015) 53 Fam LR 454 at 466 [72].
Since the decision of the High Court of Australia in Stanford, there has been some debate as to the approach that should be taken by the Court in the exercise of its discretion pursuant to s 79 of the Act.
Prior to Stanford, the Family Court had established principles for determining what kind of order is just and equitable under s 79(2) of the Act. In the leading case of Hickey and Hickey and Attorney-General for the Commonwealth of Australia (Intervener) (2003) FLC 93-143 (“Hickey”) at 78,386 [39], it was held that the preferred approach was to adhere to the following four (4) steps:
1.Identify and determine the asset pool of the parties as at the date of the hearing (this necessarily involves identifying both the assets and liabilities);
2.Identify and assess each of the parties’ financial and other contributions to the date of the hearing (this can include the financial contributions made before, during and after the marriage) and determine the percentage entitlement of each party;
3.Assess how future and other events may have a financial impact on either of the parties, such as their age, state of health, income and property or financial resources (known as the s 75(2) factors) and determine any necessary adjustment; and
4.Step back and examine this formula-based reasoning against the history of the marriage, intangible considerations and other contingencies so as to consider whether the outcome represents a just and equitable result.
That approach had been endorsed many times.[1] However, as the High Court noted in Stanford, s 79(2) of the Act provides that the Court shall not make an order altering the interests of the parties to the matrimonial property unless it is satisfied that “in all the circumstances, it is just and equitable to make the order”. Accordingly, since Stanford, it has generally been the practice of the Family Court to determine, as an initial issue, whether it is just and equitable to make an adjustment of marital property.
[1] See for example Manolis & Manolis (No. 2) [2011] FamCAFC 105, [63] (Coleman, May and Ainslie-Wallace JJ); Kildea v Kildea (2007) 38 Fam LR 347, 365 [104] (Finn, May and Boland JJ); Coghlan and Coghlan (2005) FLC 93-220, 79,639 [22] (Bryant CJ, Finn and Coleman JJ), 79,655 [142] (O’Ryan J).
More generally, in Petruski v Balewa (2013) 49 Fam LR 116 (“Petruski v Balewa”) at [49], the Full Court said:
The task of assessing contributions under s 79 of the Act is an holistic one; what is required is to evaluate the extent of the contributions of all types made by each of the parties in the context of their particular relationship: Dickons & Dickons [2012] FamCAFC 154 (Dickons). As was also said by the Full Court in Lovine & Connor [2012] FamCAFC 168 at [40] and [41] (Lovine) such an evaluation “inevitably involves value judgments and matters of impression”, and accordingly it cannot be treated as “a mathematical exercise”.[2]
[2]See also Dickons v Dickons (2012) 50 Fam LR 244, 249.
In exercising its discretion, the Court is required to take into account the matters set out in s 79(4) of the Act. Section 79(4) is divided into two (2) limbs. The first limb is in respect to those matters set out in paragraphs (a) to (c), which deal with what are commonly known as the “contribution” factors. Contributions can, in turn, be direct or indirect, financial or non-financial contributions to the matrimonial property. The second limb is in respect to those matters set out in paragraphs (d) to (g), which primarily relate to the future needs of the parties but can include any fact or circumstance which, in the opinion of the Court, the justice of the case requires to be taken into account.
As noted, a determination of what orders should be made is to be carried out with reference to s 79(4) of the Act once the Court has determined that it is just and equitable to make an order adjusting the matrimonial property. The section is a legislative guide to assist the Court in considering how its broad discretion should be exercised to make appropriate orders to adjust the matrimonial property. This is to be contrasted, for instance, with s 75(1) of the Act, which provides that, in exercising jurisdiction in respect to spousal maintenance, the Court “shall take into account only the matters referred to in subsection (2)”. (Emphasis added). In other words, s 79(4) of the Act sets out a non-exhaustive list of matters to be considered in order to do justice between the parties: see Marinko and Marinko (1985) FLC 91-609 at 79,944. Those matters are:
(a) the financial contribution made directly or indirectly by or on behalf of a party to the marriage or a child of the marriage to the acquisition, conservation or improvement of any of the property of the parties to the marriage or either of them, or otherwise in relation to any of that last‑mentioned property, whether or not that last‑mentioned property has, since the making of the contribution, ceased to be the property of the parties to the marriage or either of them; and
(b) the contribution (other than a financial contribution) made directly or indirectly by or on behalf of a party to the marriage or a child of the marriage to the acquisition, conservation or improvement of any of the property of the parties to the marriage or either of them, or otherwise in relation to any of that last-mentioned property, whether or not that last-mentioned property has, since the making of the contribution, ceased to be the property of the parties to the marriage or either of them; and
(c) the contribution made by a party to the marriage to the welfare of the family constituted by the parties to the marriage and any children of the marriage, including any contribution made in the capacity of homemaker or parent; and
(d) the effect of any proposed order upon the earning capacity of either party to the marriage; and
(e) the matters referred to in subsection 75(2) so far as they are relevant; and
(f) any other order made under this Act affecting a party to the marriage or a child of the marriage; and
(g) any child support under the Child Support (Assessment) Act 1989 that a party to the marriage has provided, is to provide, or might be liable to provide in the future, for a child of the marriage.
Further to considerations under s 79 of the Act, as noted, s 79(4)(e) requires the Court to have regard to the matters referred to in s 75(2) of the Act so far as they are relevant. I will subsequently discuss those provisions in undertaking the third step referred to in Hickey at 78,386 [39].

Consideration

Is it just and equitable to make a property adjustment?

In Stanford at 122 [42], the High Court said:
In many cases where an application is made for a property settlement order, the just and equitable requirement is readily satisfied by observing that, as the result of a choice made by one or both of the parties, the husband and wife are no longer living in a marital relationship. It will be just and equitable to make a property settlement order in such a case because there is not and will not thereafter be the common use of property by the husband and wife. No less importantly, the express and implicit assumptions that underpinned the existing property arrangements have been brought to an end by the voluntary severance of the mutuality of the marital relationship. That is, any express or implicit assumption that the parties may have made to the effect that existing arrangements of marital property interests were sufficient or appropriate during the continuance of their marital relationship is brought to an end with the ending of the marital relationship. And the assumption that any adjustment to those interests could be effected consensually as needed or desired is also brought to an end. Hence it will be just and equitable that the court make a property settlement order. What order, if any, should then be made is determined by applying s 79(4).
This case falls within that category of cases referred to in Stanford where the just and equitable requirement is readily satisfied. Both parties are now living separately and apart. The substantial aspect of their joint property is currently held in a controlled monies account and they wish for that to be divided so that it can assist each of them with getting on with the rest of their lives. I am satisfied that it is appropriate for such orders to be made. The remainder of this decision will focus upon what orders are both appropriate and result in an outcome that is just and equitable for both parties.

The balance sheet

The parties have each tendered proposed balance sheets. The balance sheet proposed by the wife is included in the wife’s written submissions (marked ‘Exhibit 21’ in the proceedings). The husband tendered a separate proposed balance sheet (marked ‘Exhibit 22’ in the proceedings). I have, immediately below, set out the balance sheet as proposed by the wife, it being slightly more comprehensive than that proposed by the husband. In considering the contentions of the wife in respect to those items that should or should not be included in the balance sheet, I will also, where necessary, refer to the husband’s proposals as set out in Exhibit 22.

Item	Owner	Description	Wife’s value	Husband’s value
ASSETS
1	W	Bank accounts	$E1,000	$90,000
2	H	Bank accounts	$2,300	$1,770
3	W	Motor vehicle 2	$9,500	$15,000
4	H	Motor vehicle 3 Motor vehicle 4	$6,000 $25,000	$6,000 $20,000
5	J	Controlled Monies account held by CC Lawyers	$243,708	$246,000
6	H	Household contents	$10,000
7	W	Household contents	$200
8	J	Jewellery and coins held by Wife’s previous solicitor	$E5,000	$100,000
9	J	Jewellery held by Husband’s previous solicitor	$E10,000
10	H	City C property/proceeds of sale	$E660,000
11	H	Funds transferred to sister pre settlement of the former matrimonial home	$102,000
12	H	Investments in Country D	$10,000	$12,900
13	W	Bank accounts in Country D	$0	$E60,000
Total		$1,084,708	$551,670

ADDBACKS
10	W	Bond paid to Ms Anwar in December 2016 as per court orders for an interim rental property	$1,680
11	W	Husband’s Laptop retained by Wife	$1,000
Total		$2,680

LIABILITIES
14	W	Loan from brother	$30,000
15	W	HECS Debt	$22,000
16	H	CBA overdraft	$13,000	$13,000
17	H	CBA Credit Card	$3,000	$3,000
18	H	Legal fees	$0	$13,000
Total		$68,000

SUPERANNUATION
Member		Name of Fund	Type of Interest
19	W	Super Fund 1	Accumulation	$12,000	$12,000
20	H	Super Fund 2	Accumulation	$69,700	$69,670
$80,700

As noted, the husband’s respective contentions regarding the balance sheet are set out in Exhibit 22 in these proceedings.

Item 1 – the wife’s bank account(s)

In respect to disputed item 1, having regard to Exhibit 24, I am satisfied that, as at 6 July 2020, the wife had the amount of $3,820.57 by way of credit in her DD Bank account ending …73. No other evidence was presented regarding potential deposits or withdrawals from that account in the period between 6 July 2020 and 30 July 2020, being the first day of hearing. However, I will regard the amount as at 6 July 2020 as being the best evidence available of funds held in bank accounts for the wife. In making that finding, I note that the husband contended that the wife held an amount of approximately $90,000 in bank accounts in Country D and he complained that the wife had not provided proper disclosure in respect to that amount.
The existence of those funds was denied by the wife. The husband has not presented evidence regarding the existence of those funds. The evidence presented in this case is that the wife has, since the parties separated, been living in relatively frugal circumstances. This is consistent with her denial of the existence of any additional funds as alleged by the husband. In those circumstances, I accept the evidence of the wife that she does not have an additional bank account in Country D as alleged by the husband.

Item 2 – the husband’s bank account(s)

In respect to item 2, the husband admits that, as at the date of first day of hearing, he had approximately $1,770 in the relevant bank account. The wife has not presented evidence to establish the existence of an additional $530 cash in that bank account and, accordingly, I will accept the concession by the husband that he has the sum of $1,770 dollars in a bank account.

Item 3 –Motor vehicle 2

In respect to item 3, no evidence was presented from an appropriately qualified person regarding the value of the motor vehicle 2 and, in those circumstances, I accept the value to be the amount conceded by the wife, being $9,500.

Item 4 –Motor vehicle 4

In respect to item 4, similarly, no evidence was presented from an appropriately qualified person regarding the value of the motor vehicle 4 and, in those circumstances, I accept the concession of the husband that the vehicle is worth $20,000.
The husband did not admit ownership of the motor vehicle 3 as alleged by the wife nor was there any evidence presented regarding the value of any such vehicle from a person who is qualified to present that value. Accordingly, the amount of $6,000 stated in respect of that vehicle will be removed from item 4 on the balance sheet.

Item 5 – controlled monies account

In respect to item 5 on the balance sheet, both parties are in substantial agreement. The husband contends, in Exhibit 22, that the amount held is the sum of $246,000 whereas the wife contends that the amount is $243,708. The difference between the two (2) parties’ calculations appears to relate to the fact that the wife contended, by way of submissions, that she has been advised by CC Lawyers that there will be a fee rendered by that firm in respect to monies that they have held in trust for a period of several years. The orders sought by the husband acknowledge that there may be a potential legal fee in respect to the solicitors holding those funds. The wife’s contention that there will be a fee rendered by CC Lawyers is therefore plausible and, on that basis, I will include the lesser amount of $243,708 in item 5 on the balance sheet.

Items 6 and 7 – household contents

In respect to item 6, the wife contends that the husband has household contents in the order of $10,000. This was not admitted by the husband. In the absence of evidence as to what any such contents are and, further, in the absence of evidence from a person qualified to provide the value of those contents, item 6 will be removed from the balance sheet.
In respect to item 7, again, evidence was not presented from a person who is appropriately qualified to provide evidence regarding the value of the wife’s household contents. However, in circumstances where the wife has made an admission against interest, I will include item 7 in the sum of $200 as admitted by the wife.

Items 8 and 9 – jewellery and ancillary items

It is noted that there is a substantial difference between the parties’ positions as to the value of jewellery and other items held by the wife’s previous solicitors, as contended by the wife, and the amount which the husband contends that the wife retains in her possession. In that respect, the wife contends that her previous solicitors hold jewellery and British pounds that had previously been contained in the parties’ safe to the value of approximately $5,000. The husband acknowledges that the wife’s previous solicitors hold certain items of jewellery and currency but he contends that, in addition, the wife retains other substantial items of jewellery and monies which he contends the wife removed from the parties’ safe without his consent.
During cross-examination, the wife acknowledged that she had unilaterally removed items from the parties’ safe. However, she contended that those items had been provided to her previous solicitors and that they remain with those solicitors. Comparatively, the husband contends that the wife has retained those additional items, to the value of $100,000, for her personal benefit.
The husband’s evidence in respect to what he contends were the actions of the wife in unilaterally accessing the contents of the parties’ safe and removing items of value is set out in paragraph 52 of the husband’s trial Affidavit. At paragraph 46 of his trial Affidavit, the husband attests that, on the afternoon of 15 November 2016, the husband called the police to report the incident – that is, his discovery of missing items from the safe.
The husband attaches a copy of the police report in respect to their attendance on the afternoon of 15 November 2016. That report records the notation:
[The husband] when asked by police wanted to report a theft of the mentioned items. [The husband] also stated that they were not stolen, only that [the wife] had moved the items and that she was going to keep them for herself and not disclose them in the settlement.
The police notes recording their attendance, on 15 November 2016, further record that, when the wife was asked about the items which the husband contended were in the safe, “she denied any knowledge”.
The husband contends that the wife’s response to police whereby she “denied any knowledge” was inconsistent with subsequent correspondence that his solicitors received from the wife’s solicitors on 5 December 2016, wherein it was acknowledged that the wife was in possession of certain items that had originally been located in the safe and that those items were being left with her solicitors. The police notes of their attendance on 15 November 2016 are not, however, sufficiently detailed to enable me to make a determination that there was an inconsistency in the wife’s explanation as reported to the police and as reflected in the letter from her solicitors dated 5 December 2016.
The husband further contends that it should be inferred the wife has given an inaccurate account of having removed items from the safe in circumstances where, when the issue of the contents of the safe was raised before a judge of the Federal Circuit Court on 2 December 2016, the wife did not report to the judge that she had already removed the contents of the safe. This, the husband contends, can be inferred from the fact that the learned judge saw utility in making Orders for the safe to remain sealed. The transcript of the proceedings on 2 December 2016 has not been provided to the Court and it is not possible to draw the inferences as contended by the husband.
At paragraph 53 of his Affidavit, the husband sets out hearsay communication which he has had with representatives of the Department of Foreign Affairs and Trade regarding his application for a replacement passport. The husband attaches to his Affidavit, at annexure D, a letter from the Department which he contends was “in his favour”. That letter confirms that the husband’s request for the release of information from the Department was acceded to however, neither the contents of paragraph 53 of the husband’s Affidavit nor annexure D shed light on what happened to the contents of the parties’ safe in the period prior to 15 November 2016.
The husband carries the onus of proof in contending that the wife has wrongfully retained, for her sole use and benefit, items that had previously been jointly owned by the parties and contained in the safe. He is required to satisfy the Court to the standard required by s 140(2) of the Evidence Act 1995 (Cth) (“the Evidence Act”) – on the balance of probabilities. Thus, while the evidence before the Court raises a suspicion that the wife may have removed certain items of value from the contents of the parties’ safe at a time prior to 15 November 2016, in circumstances where each of the parties gave conflicting evidence regarding this matter and in circumstances where the husband’s corroborative evidence is not sufficiently strong to tip the evidentiary scale in his favour, the evidence presented by the husband is not sufficient for the Court to determine, as a matter of probability, that the wife has, in her possession, the number of items, as contended by the husband, which were taken by her from the safe.
In any event, even if I had been satisfied that the wife had acted in the manner alleged by the husband, the Court is without evidence, from a person qualified to give such evidence, as to what the value of those items would be. In that respect, I note that the only evidence of the contents of the safe which the husband contends have been retained by the wife is set out in photographs contained in the husband’s tender bundle (marked ‘Exhibit 20’ in the proceedings). Those photographs do not enable the Court to make a determination of the value of the items so photographed.
Accordingly, item 8 will be removed from the balance sheet. I will, however, in making orders for the adjustment of the parties’ property, make orders for monies currently held by the wife’s previous solicitors to be distributed between the parties on the basis of the proportions that I determine in these proceedings. I will also make an order for the items of jewellery to be provided to an auction house, agreed to by the parties, for those items to be sold and the proceeds distributed between the parties in accordance with the proportion that I determine to be appropriate, just and equitable in these proceedings.
The issue in respect to item 9 is similar to the issue in respect to item 8. That is, the wife contends that the husband is in possession of jewellery that is jointly owned by the parties and which is held by the husband’s previous solicitors. The husband acknowledges that he is in possession of three (3) rings but contends that they are of little value and does not admit that they are worth $10,000. In circumstances where the Court is, again, without evidence from a person who is appropriately qualified to provide evidence of the value of those rings, I will similarly make orders for those rings to be sold through an auction house, agreed to by the parties, with the proceeds distributed in accordance with the percentage entitlement that I determine to be appropriate and just and equitable in these proceedings.

Item 10 – proceeds of sale of the City C property

In respect to item 10, the wife contends that the husband retains the sum of approximately $660,000 from the proceeds of the sale of the City C property, which he jointly owned with his sister.
The husband’s evidence in respect to the purchase and sale of that property is set out in his trial Affidavit as follows:
CITY C VILLA
54. In 2008, my younger sister Ms L (who lives in Country FF) and I, decided to buy a house in City C for investment. The property we purchased was a 250sqm, two-bedroom villa in GG District in the outskirts of City C.
55. My sister was not a Country D resident, and hence, she was not allowed to register the property in her name: Therefore, we signed an agreement to have equitable shares in the property which was registered at a Notary Department in March 2008. The agreement stated that my sister will pay 50% of the value of the villa as a down payment and that I will be arranging for the other 50% of the purchase price by means of a Mortgage Loan from the bank. One original copy of the agreement was kept with my sister and I kept the other original copy with me in the family safe…
56. My sister had no issue for my family and I to live in the said property until it was rented out.
57. I continued making the Mortgage repayment until it was fully paid out in 2013. I continued paying my sister her share of the annual rent until it was sold.
58. After separation, my sister insisted that we should sell the villa and that she should get her share urgently.
59. We sold the villa on 26.12.2017 and my sister received her share and I received mine, minus all the service fees and other charges.
The wife engaged in extensive cross-examination of the husband in respect to this issue and she did not discredit the husband’s evidence in respect to this issue. At page 45 of the transcript of 30 July 2020, the wife acknowledged, in response to a question from counsel for the husband, that the City C property was purchased in March 2008 for the sum of approximately Country D 1,450,000 which the wife accepted converted, at that time, to “roughly $432,000”.
The primary dispute regarding the City C property was in respect to the date of sale of the property. In that respect, the wife tendered a document which she downloaded from the Internet titled “Addendum form F” (marked ‘Exhibit 14’ in the proceedings) and which she contended established that the husband sold the City C property to a Mr HH on 20 July 2019 for the sum of Country D $1,750,000.
The dictionary to the Evidence Act relevantly defines “public document” as a document that:
(a) forms part of the records of the Crown in any of its capacities; or
(b) forms part of the records of the government of a foreign country; or
(c) forms part of the records of a person or body holding office or exercising a function under or because of the Constitution, an Australian law or a law of a foreign country; or
(d) is being kept by or on behalf of the Crown, such a government or such a person or body;
and includes the records of the proceedings of, and papers presented to:
(e) an Australian Parliament, a House of an Australian Parliament, a committee of such a House or a committee of an Australian Parliament; and
(f) a legislature of a foreign country, including a House or committee (however described) of such a legislature.
(Emphasis added)
Section 156(1) of the Evidence Act provides:
Public documents
(1) A document that purports to be a copy of, or an extract from or summary of, a public document and to have been:
(a) sealed with the seal of a person who, or a body that, might reasonably be supposed to have the custody of the public document; or
(b) certified as such a copy, extract or summary by a person who might reasonably be supposed to have custody of the public document;
is presumed, unless the contrary is proved, to be a copy of the public document, or an extract from or summary of the public document.
In the case of the document, which is Exhibit 14 in these proceedings, there is no seal on the document or any indicia that purports to be a seal of a person or body of Country D. Further, the document has not been certified in accordance with the alternative requirement of s 156(1)(b) of the Evidence Act. Accordingly, Exhibit 14 is not admissible to establish that the City C property was sold on 20 July 2019 as contended by the wife. I would add that, even if the requirements of s 156 of the Evidence Act had been satisfied, the mere fact that the document is dated 20 July 2019 does not establish that the specified date on the document was the date upon which the sale occurred.

Subsection (c) care or control of a child of the marriage

It was not disputed that, since the parties’ separation and pursuant to consent Orders made on 26 March 2019, the children live with the wife, during school terms, from Sunday until Thursday and on one Saturday every month and, during school holidays, for 50 per cent of the holiday period. The children reside with the husband in the remaining time.
At paragraph 57 of her Affidavit, the wife contends that she has had to take employment in a position that “financially is not meeting the children’s future needs” in order to be available to attend to the needs of the children during school holidays.
At paragraph 71 of her Affidavit, the wife contends that the number of hours she will be able to work will be restricted as a result of her responsibilities for caring for the parties’ two (2) children. In that respect, she notes that the parties’ younger child, Y, will remain at school for another seven (7) years.
The parties both agree that X is rated as being mildly affected by his autism spectrum disorder and requires occupational therapy sessions. This, however, presents challenges for both parties.
In circumstances where both parties have equivalent responsibility for caring for the parties’ children, I do not make a further adjustment in respect to this factor.

Subsections (d) and (e) commitments necessary to support the party and a child or person that the party has a duty to maintain and responsibility to support any other person

Each party has the need to support themselves and their two (2) children who spend approximately equal amount of time with each of the parties. Neither party has commitments to any other party other than their own children. Accordingly, I have not taken this consideration into account in determining whether an adjustment should be made pursuant to s 75(2) of the Act.

Subsection (f) eligibility of either party for a pension, allowance or benefit subject to s 75(3)

In light of s 75(3) of the Act, which states that such entitlement to a pension, allowance or benefit shall be disregarded by the Court in its exercise pursuant to s 74, I have not taken into consideration the fact that the wife is in receipt of a small government supplement in respect to her parenting role.
It is significant, however, that the husband has accumulated approximately $69,700 in superannuation and the wife has accumulated approximately $13,370.63. I am satisfied that the disparity between those amounts is as a result of the fact that the husband has spent a longer period of time in the workforce as compared to the wife in circumstances where she was, for the duration of the parties’ relationship, the primary carer of the children. The difference between the two amounts, being approximately $56,330, represents approximately 15.7 per cent of the parties’ net property pool available for distribution. This is the most significant consideration that I have had regard to in terms of my obligations to have regard to those matters set out in s 75 (2) of the Act.

Subsection (g) standard of living that in all the circumstances is reasonable

The husband attests to the families having a very comfortable lifestyle during the period of their marriage which included the wife receiving assistance from professional home help. The parties acknowledge that they also engaged in regular overseas travel during the period of their relationship.
In these proceedings, both parties have given an account of struggling to meet financial commitments. At paragraph 64 of her Affidavit, the wife expresses regret that she is unable to take the parties’ children to visit their maternal grandparents who live in Country D.
Similarly, the wife tacitly expresses regret that she is unable to afford to buy things desired by the children such as mobile phones and laptop computers as well as home entertainment equipment including a new television set.
Comparatively, the husband contends that, as a result of inadequate financial means, he is required to continue to reside with his sister so that there is adequate accommodation available when the parties’ two (2) children spend time with him.
Regrettably, the funds that are available to distribute between the parties will not significantly enhance either party’s lifestyle, although it may, potentially, be of some assistance in each of the parties applying for a home loan to acquire separate properties to live in with the children when the children spend time with each of them.

Subsection (h) extent to which payment of maintenance would increase earning capacity

At paragraph 76 of her Affidavit, the wife attests to her initial qualifications as a technologist being now 15 years out of date and contends that she requires assistance to undergo further training to return to the workforce in that capacity. I accept that the wife desires to upgrade and update her skills as a technologist and that she would be assisted by funds that permit her to do that. I am further satisfied that her employment prospects and hence future employment security and earning capacity would be enhanced as result of updating her skills.
Accordingly, I have also had regard to this consideration in considering that there should be an adjustment in the wife’s favour pursuant to s 75(2) of the Act.

Subsection (ha) effect of any proposed order on the ability of a creditor to recover debt

This consideration is not relevant.

Subsection (j) extent of contribution to income, earning capacity, property and financial resources of the other party

At paragraph 60 of her Affidavit, the wife attests that, as a result of the fact that she undertook duties as the primary carer of the children, as well as homemaking responsibilities, the husband was able to devote his time to growing his income, the process of which included professional and personal development courses, workshops and/or seminars.
I accept the wife’s contentions in that respect. I accept that the husband has a higher earning capacity than the wife as a result of the opportunities that he has had during the course of his career, including those opportunities which gave rise to his career progression during the course of the parties’ relationship. Accordingly, this is also a relevant consideration.

Subsection (k) duration of the marriage and its effect on earning capacity

At paragraph 22 of her Affidavit, the wife contends that, as a result of the husband obtaining employment in a different city when the parties lived in Country D, it was necessary for her to move away from her family, thereby leaving her support network such that she was “not able to complete [her] future studies due to responsibilities towards family and home”.
At paragraph 16 of his reply Affidavit, the husband gives a different account, stating that he started working in City F on 7 May 2005 and that the parties moved to City F, which is an approximately one (1) hour and 40 minutes’ drive from the wife’s parent’s home, on 25 November 2005. The husband contends that the wife willingly moved to City F with him and that the wife was “very excited to start [their] new life in a luxury apartment in one of the city’s most prestigious towers”.
I am satisfied that, during the period of the parties’ relationship, while the husband provided some assistance, the wife was the primary carer of the parties’ children and she was primarily responsible for homemaking responsibilities. As a result of being out of the workforce, other than for a period of six (6) months, the wife received no income and I am satisfied that the period the wife remained out of the workforce between 2005 and 2016 has impacted upon her career development and, hence, earning capacity.
At paragraph 76 of her Affidavit, the wife states that “but for [the parties’] marriage, [she] would have continued in [her] studies and progressed until normal retirement age” in a career as a technician.
I accept that there is substance to the wife’s contention that, as a result of the period of time that she has been absent from the workforce while she was the primary carer of the parties’ children, she has not progressed as quickly as she otherwise would have in her career. This has resulted in her being on a lower salary level than the husband and having a lesser earning capacity than the husband. Accordingly, this consideration is also relevant to whether there should be any further s 75(2) adjustment.

Subsection (l) need to protect a party who wishes to continue their role as a parent

Both parties attest to wishing to continue in their role as a parent. Accordingly, this consideration is equally relevant to both parties and does not result in a weighting in either party’s favour.

Subsection (m) if either party is cohabiting with another person--the financial circumstances relating to the cohabitation

Neither party is cohabiting with any other person.

Subsection (n) terms of any order proposed to be made under s 79 of the Act

For reasons which I have earlier set out, I have determined that there should be a distribution of the parties’ property in the husband’s favour of 53 per cent pursuant to those matters set out in s 79(4) of the Act.

Subsection (naa) terms of any order or declaration under Part VIIIAB

This consideration is not relevant

Subsection (na) any child support under the Child Support (Assessment) Act 1989

As noted, the husband contends that he regularly pays the amount of $457 per month in respect to child support. Comparatively, at paragraph 12 of her Affidavit, the wife contends that, in the period subsequent to the parties’ separation, the husband has been paying “irregular and random amounts of child support” and, as at the date of the hearing, there was an amount outstanding. The husband acknowledged that he did not pay child support during a period that the wife was overseas for several weeks and at which time he had responsibility for the care of the children. However, otherwise, the evidence satisfies me that the husband does pay child support on a regular basis although there have been some occasions where there has been a relatively slight delay in the payments that he has made.
The wife contends, however, that she incurs many additional expenses in caring for the parties’ two (2) children over and above the amount of child support that she received from the husband. I accept that is the case.
The fact that the husband is continuing to pay child support is a relevant consideration in the husband’s favour. However, the amount of child support he is paying is relatively minor and only partially relieves the financial commitments of the wife in respect to caring for the parties children.

Subsection (o) any fact or circumstance which, in the opinion of the court, the justice of the case requires to be taken into account; and

Both parties allege inadequate disclosure on the part of the other party. I am satisfied this is the case in respect to the husband in failing to disclose rental income from the City C property located at the “[KK District]”. The wife was not challenged on her evidence that the husband had commenced to rent out that property and received rental income of Country D 125,000 for the financial year 2012-2013 and Country D 150,000 for the financial year 2013-2014. As previously noted, the husband gave evidence that the City C property was rented out until it was sold in December 2017. In circumstances where the husband has failed to produce any documentation in relation to a bank account into which the rental income was paid, I am satisfied that he has received rental income that has not been disclosed.
As previously noted, the husband contends that the wife has failed to comply with her obligations of disclosure of all relevant records regarding her financial circumstances. I am satisfied that was the case until the final stages of the hearing when the wife produced, at least, recent bank statements. For reasons which I have previously set out, I am also satisfied that the wife provided inadequate disclosure in respect to her superannuation. However, in respect to the latter, I have made an inference against the wife’s interests in accepting the higher amount disclosed in the documents that have been produced. I am further satisfied that, while there was an unacceptable delay on the part of the wife in disclosing her relevant bank accounts, once disclosed, the documents provided confirm that she has access to relatively minor savings.
A substantial part of the husband’s case and a factor that presented difficulty in the parties reaching an agreement in this matter is the husband’s belief that the wife has removed items from the parties’ safe to the value of approximately $100,000. I have a suspicion that the wife did so remove items from the safe that she has retained for her personal benefit. However, it is no higher than a suspicion and, moreover, I am unable to determine the value of any such items that the wife may have taken. I do not, therefore, make any adjustment pursuant to s 75(2) of the Act as a result of my suspicion that the wife removed items from the parties’ safe at or about the time of the parties’ separation.
The fact that each party failed to comply with their obligations of disclosure in a timely way is regrettable because it made it virtually inevitable that this case could not resolve and had to proceed to hearing. This has occupied the resources of the court and the time and resources of the parties. However, at the end of the day, the neglect of each party to provide proper disclosure is such that I have not made any adjustment to the parties’ property interests as a result of that consideration.
At paragraph 61 of her Affidavit, the wife attests to the husband engaging in wasteful expenditure in undergoing “multiple cosmetic surgery” in the sum of “$30,000 if not more” in what she contends was one of the most expensive clinics in City C. The husband, however, denied undergoing extensive cosmetic surgery. At paragraph 29 of his reply Affidavit, the husband acknowledges having a hair transplant operation at the cost of “around $3,500 and not $35,000 as stated by the Applicant”. The wife has not provided evidence to support her contention and I therefore accept the husband’s denial of making such a high level of expenditure on cosmetic surgery. Accordingly, I have not taken this expenditure into account in determining the orders that I make.
The husband seeks an order that the wife copy family photos and video recordings which he contends remain in the wife’s sole possession. Comparatively, at paragraph 81 of her Affidavit, the wife states that she “worked very hard over the years putting together extensive family photos and video recordings” which she contends are in the husband’s possession. This fact, the wife contends, is confirmed by the children who report to her that they have seen the photos and watched the videos as shown to them by their father. In circumstances where each of the parties gives conflicting evidence as to what photographs and videos each is in possession of, I am unable to make findings as to which party’s version is accurate and, in those circumstances, I will not make orders as sought by the husband in that respect. One would expect that the parties would, however, conduct themselves with a level of mutual respect to resolve this issue in a non-litigious manner.
Similarly, the evidence presented by the parties in these proceedings is insufficient for me to determine whether the wife has or has not provided the husband with copies of the children’s birth certificates or otherwise consented to the husband obtaining copies from the Registry of Births Deaths and Marriages. If she has not, I am of the opinion that she should. However, there is otherwise inadequate information to enable me to adjudicate in respect to this issue.

Subsections (p) and (q) terms of any financial agreement, including any Part VIIIAB financial agreement, that is binding on the parties to the marriage

These considerations are not relevant

Consideration of s 75(2) factors

Other than in respect to the fact that the husband has continued to meet his child support obligations, an assessment of the s 75(2) factors which I have identified to be relevant to my consideration of this matter favour the wife. Balancing the totality of those considerations, I determine that an adjustment of 10 per cent in favour of the wife is appropriate having regard to those relevant s 75(2) considerations that I have identified.

Holistic evaluation

For reasons which I have previously set out, I have determined that the net property pool available for distribution between the parties is $358,969.
The husband and the wife contend that superannuation should be identified as a separate pool for the purpose of making alterations to the parties’ property interests.
However, neither party has presented evidence nor made submissions that enable me to properly consider whether there should be a differential alteration, other than the provision of 57 per cent in favour of the wife that I have found to be appropriate having regard to the totality of the considerations under ss 79 and 75(2) of the Act, that should be applied to the parties’ superannuation.
In that respect, in Coghlan and Coghlan (2005) FLC 93-220 (“Coghlan”), the majority of the Full Court (Bryant CJ, Coleman and Finn JJ) said at 79,644:
… superannuation interests [which have not vested in possession] are but another species of asset (in addition to property as defined in s 4(1)) in relation to which orders can be made in proceedings between parties to a marriage.
It is commonly the case that the Court will take a two- (2) pool approach in considering whether an adjustment should be made in respect to the parties’ non-superannuation assets and the parties’ superannuation assets. In that respect, in Coghlan the Full Court confirmed that superannuation can be treated differently from the non-superannuation property pool as the points of distinction relate to the particular characteristics of superannuation. Most relevantly, with superannuation, there is usually a lack of access to the funds until the identified retirement or withdrawal date.
In Drewett & Drewett [2012] FamCA 320, Cronin J at [184] referred to Coghlan as providing the preferred approach to the treatment of superannuation wherein the majority of the Full Court said:
We consider the preferred approach to the determination of property settlement cases must be to prepare, in addition to the list of items of property which would clearly fall within the definition of that term in s 4(1), a separate list containing any superannuation, interest or interests valued according to the regulations if a splitting order is sought in any application before the court or if no such order is sought that either according to the regulations or otherwise.
In further discussing Coghlan, Cronin J said at [185]–[188]:
185. Their Honours said that whether or not a splitting order was sought on either party's application, their contributions to both the property as defined in s 4(1) and also the superannuation interests should be assessed. The other factors in s 79(4)(d), (e), (f) and (g) would then need to be considered. The s 75(2) factors would then be considered.
186. Similarly, the parties' future superannuation prospects, be they in capital or income form, would also need to be considered. The overall justice and equity of the ultimate award, including any proposed splitting order or the need for such an order, would then be considered. The Full Court then went on to set out how that pathway was to be followed. Their Honours then said:
In the context of the consideration of the matters referred to in subparagraphs (b) and (c) of a preceding paragraph in which they referred to the pathway the following matters may be relevant: the relationship between years of fund membership and cohabitation; actual contributions made by the fund member at the commencement of the cohabitation (if applicable) at separation and at the date of hearing; preserved and non-preserved resignation entitlements at those times; and any factors peculiar to the fund or to the spouse's present and/or future entitlements under the fund.
187. Their Honours then said:
If this approach is adopted whereby superannuation interests are dealt with separately from properties defined in s 4, but are subject to the considerations in s 79(4) then not only will any contributions both direct and indirect by either party to such superannuation interests be more likely to be given proper recognition, but the real nature of the superannuation interests in question can also be taken into account both in consideration of the s 75(2) matters and in the final assessment of whether the ultimate order is just and equitable.

In this case, I was not addressed by the parties in respect to those matters referred to by the Full Court in Coghlan. That is, no evidence was presented and no submissions were made in respect to:
a)the relationship between years of fund membership and cohabitation, save to the extent that it was agreed that the parties cohabited for a period of approximately 12 years;
b)actual contributions made by the fund member at separation and at the date of hearing; and
c)any factors peculiar to the fund or to the spouse's present and/or future entitlements under the fund.
In those circumstances, I do not propose to treat the parties’ superannuation entitlements separately from the parties’ non-superannuation assets.
As the parties’ property interests can be altered in accordance with the percentage split which I propose to make in this matter, without disturbing their existing superannuation entitlements, I do not propose to make a superannuation splitting order.
In circumstances where the net property pool available for distribution between the parties is relatively modest at $358,969, neither party will be greatly assisted by the outcome of these proceedings. Nevertheless, I determine that the parties’ property interests should be altered such that the wife receives 57 per cent of the net property pool being equivalent to $204,612.33 and the husband should receive a distribution of 43 per cent of the net property pool being equivalent to $154,356.37.
The wife currently has the following assets:
·Bank account – $3,820.57;
·Motor vehicle – $9,500;
·Household contents – $200; and
·Superannuation – $13,370.63
Which together total $26,891.20.
In circumstances where the wife is entitled to an adjustment that gives her net property of $204,612.33, the wife is entitled to receive a distribution in her favour of $177,721. I will, therefore, make an order for the parties to do all things necessary to affect the distribution of monies currently held by CC Lawyers such that the wife receives $177,721 and the husband receives the net balance of those funds after payment of legal costs associated with the maintenance of that fund.
It is to be noted that the husband sought an additional adjustment in respect to legal costs. However, that issue would need to be the subject of a separate application in the event of the husband wishing to file such an application and attempt to satisfy the Court of those matters set out in s 117 of the Act.
I will make a further order that the wife is to return to the husband his laptop computer as referred to in these proceedings.
I will also make further orders that the parties take all such steps as are necessary to deliver to an auction house those items of property currently held by the wife’s former solicitors which had been removed from the parties’ safe and that the husband will, similarly, cause to be provided to that auction house the three (3) rings that have been referred to in the course of these proceedings.
Those orders will provide for the parties to instruct the auction house to sell the items of property that are provided by the parties and to distribute the net proceeds of sale on the proportion of 57 per cent to the wife and 43 per cent to the husband.
I will make a further order requiring the parties to provide such instructions as is necessary to the wife’s former solicitors to distribute the money, in the form of British pounds, that has been retained in their possession to the parties on the basis of 57 per cent to the wife and 43 per cent to the husband.

I certify that the preceding three hundred and twenty-eight (328) paragraphs are a true copy of the reasons for judgment of the Honourable Deputy Chief Justice McClelland delivered on 16 December 2020.

Associate:

Date: 16 December 2020