Bahar and Sohrab

FAMILY COURT OF AUSTRALIA

BAHAR & SOHRAB

[2017] FamCA 40

FAMILY LAW – PROPERTY –Where a central inquiry is what should be included in the net pool of assets – Where both parties held substantial assets at the time of separation but the vast bulk of those assets are no longer there – Where both parties allege the other has failed to make a full and frank disclosure particularly in relation to how they applied cash resources after separation – Where the husband has significant assets available to him which he has alienated and secreted – Where the wife seeks a 65/35 split of assets including the value of the husband’s superannuation pension – Where the wife seeks to retain 100 per cent of the husband’s superannuation pension – Where the husband seeks orders that the parties’ net assets be divided equally with his superannuation to be excluded – Where the husband was involved in proceedings in the Supreme Court of the ACT which were a sham and an abuse of process orchestrated by the husband in breach of specific orders made freezing funds – Where based on contributions, the assets should be divided as to 55 per cent to the wife and 45 per cent to the husband primarily due to greater contributions being made on the wife’s behalf from sources outside the marriage – Where there should be a five per cent adjustment in the husband’s favour for s79(4)(d)-(g) considerations based upon, inter alia, the husband’s medical condition being more severe than the wife’s and the financial resource available to the wife arising out of her relationship with her siblings – Where orders are made for a 50/50 division of the assets including a partial splitting of the husband’s superannuation pension.

Family Law Act 1975 (Cth)
Family Law (Superannuation) Regulations 2001 (Cth)

Bevan & Bevan (2013) FLC 93-545
Black & Kellner (1992) FLC 92-287
Chorn & Hopkins (2004) FLC 93-204
Coghlan & Coghlan (2005) FLC 93-220
Weir & Weir (1993) FLC 92-338

APPLICANT:

Ms Bahar

RESPONDENT:

Mr Sohrab

FILE NUMBER:

CAC

1429

2014

DATE DELIVERED:

1 February 2017

PLACE DELIVERED:

Sydney

PLACE HEARD:

Canberra

JUDGMENT OF:

Watts J

HEARING DATE:

9 – 12 February 2016

6 – 9 December 2016

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr Kearney, SC

SOLICITOR FOR THE APPLICANT:

Farrar Gesini Dunn

COUNSEL FOR THE RESPONDENT:

Ms Haughton (in February hearing)

SOLICITOR FOR THE RESPONDENT:

Litigant in person

Orders

Pursuant to s 79 of the Family Law Act 1975 (Cth) (“the Act”) a property settlement order be made in the terms of paragraphs 2 to 15.
Within 42 days, the husband transfer to the wife, at her expense, the whole of his interest in the property referred to in Certificate of Title Volume … Folio … known as U Street, Suburb V in the Australian Capital Territory (“the Suburb V property”) and the whole of his interest in the property referred to in Certificate of Title Volume … Folio … known as W Property, X Street in the Australian Capital Territory (“the W Property”) and the whole of his interest in the property referred to in and contained in Certificate of Title Folio … known as Y Street, Suburb Z in New South Wales (“the Suburb Z property”).
The wife indemnify and keep the husband indemnified in relation to all and any liability, howsoever existing or arising, with respect to the Suburb Z property, the Suburb V property and the W Property, including any liability which he may be called upon to meet by virtue of any covenant contained in any mortgage registered on the title of the Suburb Z property, Suburb V property or the W Property including the CBA home loan in relation to the Suburb Z property; the CBA home loan in relation to the W Property and the CBA loan line of credit … and outstanding strata levies in respect to the Suburb Z property.
Within 42 days the husband shall make a payment in the sum of $10,700 towards the discharge of outstanding rates on the Suburb V property.
Within 42 days the husband will vacate the Suburb V property, the Suburb Z property and the W Property and provide exclusive occupation to the wife of the Suburb V property, the Suburb Z property and the W Property.
The wife transfer to the husband her interest in CBA account ….
In accordance with paragraph 90MT(1)(b) of the Act:
7.1.The wife (or such other person to whom a splittable payment is payable) is entitled to be paid the specified percentage of each splittable payment from the husband’s interest in the Public Sector Superannuation Scheme (“PSS”);
7.2.The husband’s entitlement (or the entitlement of such other person to whom a payment may be made out of the husband’s interest) in the PSS is correspondingly reduced by force of this Order;
7.3.The specified percentage for the purposes of this Order is 36.24 per cent in the event that the husband complies with paragraph 4 but the specified percentage for the purpose of this order will be 37.39 per cent in the event that the husband fails to comply with paragraph 4;
7.4.The lawyers for the wife are to notify the Commonwealth Superannuation Corporation (“the Trustee”) in writing after the expiration of 42 days as to whether or not the husband has or has not complied with paragraph 4;
7.5.This Order has effect from the operative time and the operative time is 42 days after the date of these orders and a further four business days after service on the Trustee.
The Trustee shall do all such acts and things and sign all such documents as may be necessary to:
8.1.Calculate, in accordance with the requirements of the Act the entitlement awarded to the wife in the immediately preceding clause of this Order; and
8.2.Pay the entitlement whenever the trustee makes a splittable payment from the husband’s interest in the PSS.
The Court notes:
9.1.In accordance with section 90MZD of the Act,
9.1.1.1.The Trustee has been accorded procedural fairness in relation to the making of this Order;
9.1.1.2.The Trustee has been provided with a copy of the proposed Order; and
9.1.1.3.This Order binds the Trustee
The Trustee, after service upon it of a sealed copy of this Order, has obligations under Public Sector Superannuation Trust Deed to create an associate pension in the name of the wife.
Any payments from the husband’s superannuation interest in the PSS made after the trustee has created an associate pension in the Wife’s name in the PSS are not splittable payments in accordance with Division 2.2 of the Family Law (Superannuation) Regulations 2001 (Cth).
The Trustee will be relieved of its obligations to calculate and split payments under this Order in the event that an associate pension is created in the name of the wife.
Subject to these Orders, as against the husband, the wife is declared to be the sole owner of:
13.1.Any money in any account in her name with any bank or other financial institution;
13.2.Her superannuation entitlements;
13.3.All goods, chattels and personal property in her possession;
13.4.Any other property or ‘chose in action’ in her ownership or possession.
Subject to these Orders the husband is declared to be the sole owner of:
14.1.Any money in any account in his name with any bank or other financial institution;
14.2.His superannuation entitlements;
14.3.All goods, chattels and personal property in his possession;
14.4.Any other property or ‘chose in action’ in his ownership or possession.
Subject to these orders each party indemnify the other in relation to any liability associated with any asset that they retain and in particular the husband indemnify the wife in relation to any capital gains tax liability arising from the sale of shares in his name.
By consent, the wife shall consent to and shall seek a permanent stay of the proceedings in Iran save for the purposes of obtaining a divorce under Iranian law. IT IS NOTED that the wife says she has withdrawn the proceedings in Iran which she had previously instituted there and each party is restrained from instituting any further proceedings in Iran against the other for financial relief of any kind and from having any other person do so on their behalf.
By consent, each of the parties is restrained from doing any act or thing which may cause the other party to be prevented from entering into, or leaving, Iran.
If either party refuses, fails or neglects to execute any document necessary to put these Orders into effect 7 days after being requested to do so, and any such refusal, failure or neglect is proved by Affidavits filed and served by or on behalf of the party alleging this, The Registrar, Deputy Registrar or other Officer of the Family Court at Canberra be and is hereby appointed pursuant to Section 106A of the Act to execute such document in the name of such party.
There be liberty to apply in relation to the implementation of these Orders.

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 Bahar & Sohrab 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: CAC 1429 of 2014

Ms Bahar

Applicant

And

Mr Sohrab

Respondent

REASONS FOR JUDGMENT

INTRODUCTION

Both the husband and wife seek a property settlement order and consequential relief.
A central inquiry during the hearing was what should be in the net pool of assets and whether or not there should be any “add backs”. The balance sheet contains 82 line items, including asserted “add backs”.
At the date of separation the parties both jointly and in their sole names held substantial assets in the form of share portfolios and cash in financial institutions. The vast bulk of that wealth is no longer there. The wife has spent about $500,000 on legal fees. The husband asserts that he has spent or owes somewhere in excess of $1.7 million on legal fees and costs associated with investigating the wife’s financial affairs in Iran.
Both parties alleged that the other had failed to make a full and frank disclosure. Connected to the issue of non-disclosure of assets was the question as to how each party had applied cash resources available to them at separation both in regard to significant reductions in account balances at financial institutions and in share portfolios.
The husband alleged that the wife had failed to disclose assets and financial resources which she holds in Iran. In addition or in the alternative, the husband asserts that the wife has significant financial resources available to her through her six siblings, particularly those who live in Iran. The wife asserts she has given away real estate in Iran which her father has either given or bequeathed to the Bahar Charitable Foundation (“the Bahar Foundation”), a charitable foundation in Iran. The directors of the Bahar Foundation are the wife’s brothers but the wife’s brother Mr O Bahar controls the Bahar Foundation.
The husband also submits that the court should regard as a financial resource of the wife monies she says she holds on behalf of the parties’ children in the United States.
The wife asserted that the husband had failed to disclose what had happened to substantial assets which were held and controlled by him in Australia and which may or may not have been moved back to Iran as well as other assets the husband may have overseas. The wife asserts that the husband had entered into a sham arrangement with his niece in circumstances where his niece sued him in the ACT Supreme Court and obtained a judgment debt that was used to justify the withdrawal of significant funds from accounts which this court had otherwise frozen.
Both parties asserted that contributions had been made by third parties to the development of the asset pool.
The husband is in receipt of an indexed lifetime disability pension. The wife is currently not working and the husband challenges the wife’s assertion in relation to her earning capacity.

APPLICATIONS

There are three jointly held properties in Australia, namely:
10.1.U Street, Suburb V which has a value of $1,250,000 and is encumbered by a line of credit in the sum of $223,752 (“the Suburb V property”);
10.2.W Property, X Street, ACT which has a value of $565,000 and is encumbered by a mortgage of $574,850 (“the W Property”);
10.3.Y Street, Suburb Z which has a value of $1,275,000 and is encumbered with a mortgage of $741,449 (“the Suburb Z property”).

The wife’s application

The final form of the orders sought by the applicant wife are contained in Exhibit 77, a copy of which is set out at Schedule 1. The wife formally seeks a 65/35 split of assets on the basis of contributions and that no further adjustment should be made for prospective factors. The wife says her calculation assumes that substantial assets, of which the husband has had the benefit, are added back to the asset pool.
The wife seeks that the husband pay her the sum of $1,241,690. Upon that payment the wife will transfer to the husband her interest in the Suburb V property and the W Property and the husband will transfer to the wife his interest in the Suburb Z property. Notwithstanding that the lump sum sought is more than what, on the face of the evidence I have, is the equity in the Suburb V and W Property properties, the wife on a default sale seeks a fixed sum payment rather than a percentage (which is the usual course commended by authority).
The husband’s Public Sector Superannuation Scheme (“PSS”) pension has been valued in accordance with the relevant Regulations in the sum of $927,687.72 but is received by the husband as an indexed income stream, currently in the sum of $1,247 gross per week. The wife seeks a splitting order so that she receives 100 per cent of that income stream. The wife has an accumulation superannuation interest of $196,399.
The effect of the application made by the wife is that the currently identifiable assets would all go to the wife. The husband during final submissions claimed that on its face the wife’s application would see him homeless and without an income. The wife concedes the orders that she seeks might strike as fairly extreme on their face. The wife’s case however is that findings would be made that the husband has available to him significant assets which he has alienated and secreted.

The husband’s application

The orders originally sought by the husband are contained in the Amended Response filed by him on 21 September 2015. Those orders sought that the wife receive the W Property and take over the mortgage (which currently is more than the value of the property); that the husband receive the Suburb Z property and he take over its mortgage and that upon the husband paying the wife the sum of $130,000 the wife will transfer the Suburb V property to him. The husband at that time sought an order that all joint bank accounts be closed and the proceeds distributed 70 per cent to himself and 30 per cent to the wife.
The husband now wants a property settlement order which takes all currently available assets, excluding his superannuation and divides them equally.
The husband still wishes to obtain as a result of the property settlement order, the ability to own the Suburb Z property. As indicated, the wife seeks a similar order. The husband does not seek to continue to reside in the Suburb V property if he retains the Suburb Z property.

SHORT HISTORY

The husband was born in 1956 in Iran and is currently 60 years old.
The wife was born in 1966 in Iran and is currently 50 years old.
The husband says that the parties commenced cohabitation in 1987. The wife says cohabitation commenced in 1989.
In 1989 the parties married.
In 1992 the parties’ first child, Ms S (“Ms S”), was born and is currently 24 years old.
In 1999 the parties’ second child, T (“T”), was born and is currently 17 years old.
The husband worked full time until 1998 and then part time until the end of 2005 when he retired due to his medical condition.
In October 2014 the parties separated on a final basis.

CREDIT

Wife’s credit

The wife generally gave evidence in a relatively straight forward manner which was reasonably consistent over an extended period of cross examination.
The wife was asked questions about the disclosure of shares she held in her name after the parties’ separated. When asked why she had not disclosed certain shareholdings in previous financial statements the wife explained that some shares were held under her married surname, a surname which she was never known by, and as such she was unaware that she held certain shares until she utilised the expertise of an accountant. I accept her evidence about that.
The wife agreed that when she stated in her five financial statements filed throughout these proceedings that she received $200 per week in dividends, that that amount was wrong and inconsistent with the amount disclosed in her tax return for the 2014 and 2015 financial years. The wife’s explanation for stating a lesser amount in her financial statement was that she was unaware of any of the details of the dividends that were being deposited into her bank account and that she had left those calculations for her accountant to complete in her tax returns. This is an inadequate explanation for providing inaccurate information in her financial statements.
When asked to account for deposits made to an account in her sole name totalling about $40,000 (Exhibit 16) the wife initially stated that those deposits were proceeds from monies she received from the sale of her unit in City AA in 2012. This memory proved to be faulty. When shown the investment home loan bank account for the Suburb Z property (Exhibit 28) which listed identical withdrawals on the same dates, the wife changed her evidence to say that those deposits must have been made from that account.

Husband’s credit

The husband has been involved in many years of tertiary study and for some years was a PhD student.
After the initial days of the final hearing, where the husband was represented, the matter was adjourned part heard. During the second phase of the final hearing, the husband represented himself. Dr BB, the father’s treating psychiatrist, in a short report dated 28 November 2016 (Exhibit 82) which is referred to below, wrote:
The conditions which [Mr Sohrab] suffers form [sic] in addition to the medication all have the propensity to impair focus and memory and thus I would ask that this be taken into account in any court proceedings.
The husband is an articulate and intelligent man. Whilst on a few occasions during the hearing he seemed to be in some physical discomfort, I formed the view that he understood what was being said and involved himself, sometimes passionately, but always intelligently, in arguments around issues in the proceedings.
The husband is a man who on his own evidence has been a meticulous and careful steward of funds over a long relationship. He however wants me to accept that he handed over large amounts of cash to ‘[Mr CC] the bag man’ at his front door; was an unwilling defendant to Supreme Court proceedings brought by his niece which resulted in a consent default judgment of $654,444; and gambled significant amounts of money away at Canberra casino. I find his explanations about all those matters lacking in credibility. As discussed below, I was particularly unimpressed by the evidence the husband gave about his involvement in proceedings purportedly brought by his niece against him in the Supreme Court of the ACT. Those proceedings were a sham and an abuse of process orchestrated by the husband in breach of specific orders that I had made freezing funds.

The husband’s story about paying an additional $850,000 to his niece in Iran was a moving feast and inconsistent with particulars in the Statement of Claim by his niece.
Mr DD was a witness called by the wife on the issue of monies the husband had Iran. During the cross examination of Mr DD, in an attempt to discredit Mr DD, the husband asked him questions about whether or not Mr DD had feelings of disgust about him. Mr DD indicated that he did and that those feelings stemmed from him seeing an email in 2014 that the husband had sent the wife in 2011. That email became Exhibit 43 and had a subject title “[Ms Bahar] jon stop your abuses” and then 18 full stops. The email encloses a newspaper article entitled “TV station owner convicted of beheading wife in studio”. The newspaper article was about the founder of a New York television station who had been convicted of beheading his wife and who had attempted before a jury to justify his killing of her by saying it was “because he was long abused by and afraid of his wife”. The story goes on to contain some relatively grizzly details of the murder.
The husband asserted that what he wrote in that email was a joke between him and his wife. I asked the husband whether the email title “stop the abuses” was a term of endearment and the husband responded that it was not. He then qualified his evidence by saying it was not a joke but it was not to be taken seriously. I do not accept that this email that the husband sent to the wife was either a joke or something that she would know he was not serious about. The email on its face is a callous threat to the wife and the husband’s inability to accept that that is so damages his credit.
The husband asserted that he did not ever know the money from the sale of his assets in Iran was going to be transferred to his accounts in Australia. I comfortably reject that submission and find the husband was in total control of organising monies to come from Iran to Australia.
The husband was asked questions about his involvement in a dispute involving the wife, her father and her brother in relation a property at Suburb EE. The husband asserted that he wasn’t particularly cognisant at the time of that dispute as to what it was about. The husband was then cross examined in relation to letters that he had drafted on behalf of the wife at the time and an enduring power of attorney that the wife had granted him in order to deal with any matters relating to the Suburb EE property. It is clear that the husband was centrally involved with the wife in concerns about the wife’s father’s intention to transfer the Suburb EE property to the wife’s brother without compensation to the wife and his denial that he wasn’t particularly cognisant about the dispute at the time was disingenuous.
The husband’s credit is compromised. I approach with caution the evidence he gives about any contentious matter.

The husband’s submissions

During final submissions and despite my discouragement from doing so, the husband made a number of assertions about factual matters in respect of which I had no admissible evidence.

Mr O Bahar

Mr O Bahar, the wife’s brother, is the senior member of the wife’s siblings and is significantly older than the wife. His evidence was less than satisfactory for a number of reasons:
41.1.Mr O gave inconsistent answers in relation to how decisions were made on behalf of the Bahar Foundation and whether or not he was the main decision maker.
41.2.Mr O was asked questions about who had handled the 2012 sale of the wife’s unit in City AA. Mr O originally thought that it might have been his brother Mr K but was told that Mr K had said that it might have been him. He said on reflection that it may well have been him but he had no clear memory of it. That evidence was less than credible. It is unlikely that Mr O would have forgotten if he had handled the transaction to sell the wife’s unit in City AA in 2012.
41.3.Mr O was unable to give any estimate as to the assets held by the Bahar Foundation.
41.4.Mr O did not have a separate bank account for the Bahar Foundation and was unable to say how much money in his current personal bank account was the money of the Bahar Foundation nor was he able to give any estimate as to the amount that he currently had in that personal bank account.
I accordingly approach Mr O Bahar’s evidence with some care.

DETAILED CHRONOLOGY

The husband was born in 1956 and is currently 60 years old.
The wife was born on in 1966 and is currently 50 years old.
In the 1970’s the wife’s father gifted her and her brothers land in City AA upon which an apartment complex was later built. In the mid-1980’s the wife’s brothers, Mr K and Mr O Bahar, built an apartment block on the land and gave the wife two apartments (a two bedroom and a three bedroom apartment) in the complex in exchange for the use of her interest in the land.
In 1975 the wife’s father gifted the wife a three bedroom apartment in City AA.
The husband says that the parties commenced cohabitation in 1987. The wife says cohabitation commenced in 1989.
In 1989 the parties married.
The wife says the parties purchased a property in Suburb GG, Melbourne, (“the Suburb GG property”) for $124,000 in 1990. The husband says this occurred in 1989.
In 1991 the husband says he received an insurance settlement for about $45,000.
In 1992 the wife received a compensation payment from the Department of Immigration of approximately $23,000.
In 1992 the parties purchased a property at Suburb HH, Melbourne (“the Suburb HH property”). The husband says this occurred in 1991.
In 1992 the parties’ first child, Ms S, was born and is currently 24 years old. After Ms S’s birth, the wife ceased working.
In 1997 the husband moved to Canberra for work. The wife remained in Melbourne until 1998 when she moved to Canberra to join the husband during which period the Suburb HH property was sold.
In 1998 the husband says the parties purchased the Suburb V property. The wife says this occurred in 2000 after the sale of the Suburb HH property.
In 1998 the husband started to develop lower back pain which was eventually to have a marked impact upon his mental wellbeing and occupational function. Until 2006 the husband took substantial sick leave and began to work part time.
In 1999 the parties’ second child, T, was born and is currently 17 years old.
The wife returned to part time work in 2000.
In 2000 the Suburb GG property was sold.
In 2006 the husband retired from work and commenced to receive a disability pension.
In 2012 the wife sold one her two bedroom apartment in City AA.
In 2010 the parties purchased the W Property.
In 2011 the parties purchased the Suburb Z property.
On 10 February 2012 each party alleges an incident involving physical violent against the other occurred.
In July 2012 the parties separated for a period of about two months during which time the wife left the Suburb V property. The parties initially resided under the same roof for two weeks during which time the wife says the husband locked her in the bathroom and the bedroom on two occasions. On 6 August 2012 the wife obtained an interim Domestic Violence Order (“DVO”) against the husband.
In September 2012 the wife returned to the Suburb V property and withdrew the DVO.
In 2013 the wife increased her working hours from 15-20 hours per week to 25-30 hours per week.
In 2014 the wife transferred her beneficial interest in a three bedroom apartment (the apartment gifted to her in 1975) in City AA to the Bahar Foundation.
In March 2014 the wife’s father died.
In October 2014 the parties separated. The wife moved out of the Suburb V property.
On 14 October 2014 the wife commenced proceedings and on 16 February 2015 the matter was transferred to the Family Court.
On 22 October 2014 the wife attended the Suburb V property to visit T. On this date the husband asserts an incident occurred where the wife verbally abused and assaulted the husband resulting in DVO proceedings. On 24 October 2014 the husband’s application for an DVO was dismissed.
In January 2015 the children moved out of the Suburb V property to live with the wife.
On 25 February 2015 the wife attended the Suburb V property to remove some items of property.
In July 2015 the wife filed proceedings in Iran.
In October 2015 the wife resigned from her position as a manager.

APPROACH

In this matter my task is to:
77.1.Identify according to ordinary common law and equitable principles and then value the property, assets, financial resources and liabilities of the parties;
77.2.Determine whether it is just and equitable to make an order altering those interests and if so:
77.2.1.Identify relevant contributions and assess them;
77.2.2.Consider relevant matters referred to in s 79(4)(d)-(g) of the Family Law Act 1975 (Cth) (“the Act”);
77.3.Determine what order adjusting the property, assets and liabilities of the parties is just and equitable.

THE ACT SUPREME COURT PROCEEDINGS

On 11 May 2016 the husband’s niece, Ms KK, using a power of attorney granted to Ms JJ, an acquaintance of the husband who lives in Tasmania, purported to sue the husband by way of Originating Claim filed in the Supreme Court of the ACT for a debt or liquidated demand in the total sum of $654,444. The claim includes interest charges for 12 weeks and the costs of the application. The interest rate asserted in the Statement of Claim was at 23 per cent per annum as allegedly agreed between the husband and Ms KK. The Statement of Claim asserts that the husband had asked Ms KK to:
78.1.Investigate the wife’s assets in Iran and went on to plead that those investigations were particularly complicated, “by the lack of Court Order which would have enabled inexpensive official searches”. (This expression purportedly used by Ms JJ is very similar to words used by the husband in these proceedings)
78.2.The wife had repeatedly failed to provide authority to carry out a search of her interests in Iran.
78.3.The husband gave Ms KK a power of attorney to act for him in the searches.
78.4.Ms KK employed skilled professionals including attorneys at law, private investigators and real estate agents in the area where the husband believed the wife had interest in property.
78.5.Expert appraisals were formally evaluated, translated and provided to the husband.
78.6.Ms KK reached an agreement in March 2015 for a percentage of any assets that she found plus expenses.
78.7.Ms KK requested compensation for her time, effort and skills and experience to undertake the tasks of searching, investigating assets, identifying and undertaking expert valuations.
78.8.She asserts she succeeded in discovering $70 million of property and bank accounts and savings belonging to the wife.
78.9.Ms KK asserts that she rendered the husband an account for her work and expenses on 12 January 2016 for US$985,000 which converted to AUD$1,470,000.
78.10.Ms KK says that she had already been paid $850,000 which meant that $620,000 remained.
78.11.She asserts she had been unsuccessful in contacting the husband to attempt to secure payment.
On 24 May 2016, some 13 days after the Originating Claim was filed, the husband signed consent orders in the following terms:
1. Defendant, [the husband], to pay plaintiff [Ms KK] money owed in the sum of $654,444.
2. Defendant to do all things necessary to ensure monies owed under Order 1 are paid as soon as practicable from accounts referred to in Order 3.
3. That the St George bank and Commonwealth bank, where defendant holds money under his sole name, do all they can to ensure release of all funds from the following accounts:
St George bank Account number: …, with a balance of approximately $473,820; and
St George bank Account number: …, with a balance of approximately $184; and
Commonwealth bank Account number: …, with a balance of approximately $2,393; and
Commonwealth bank Account number: …, with a balance of approximately $27,482.
4. That the two banks referred to above as soon as practicable to transfer those funds electronically to the following account of the plaintiff’s attorney in Australia:
Name of Account: [Ms JJ];
Name of Bank: National Australia Bank;
Account number: …
5. Any debt still outstanding after payments of Order 3, will become payable from proceeds of sale of assets owned by the defendant including properties owed at unit [Y Street], in [Suburb Z], NSW and at [U Street, Suburb V], ACT.
6. Subject to payments made in accordance with Orders 3 and 4, the plaintiff to allow up to 4 months from date of this order for the defendant to arrange for sale of the remaining assets in order to clear the outstanding debt of $150,749 plus interest of 23 per cent per annum from today until it is paid.
7. Subject to payments made in accordance with Orders 3 and 4 and 6, the plaintiff to file a notice of discontinuance within 14 days of receiving the last payments.
8. That there be no orders as to costs.
The dealings between the husband and Ms KK, according to the husband, all took place by electronic means. Ms KK did not come to Australia during the relevant period.
The husband conceded that prior to the commencement of these proceedings he was aware that Ms KK had given her power of attorney to Ms JJ who lives in Hobart. The power of attorney that was executed in favour of Ms JJ is a power of attorney under Australian Capital Territory law, allegedly executed in Iran on behalf of Ms KK and in Tasmania on behalf of Ms JJ. The husband said he didn’t attempt to contact Ms JJ even though her phone number is on the Originating Claim.
Ms JJ gives as an address in the ACT, LL Street, Suburb MM. The husband denied knowing anybody at that address. The husband asserts that he was served with the Originating Claim and Statement of Claim by an unknown person at his door one night. I do not accept the husband’s evidence about that.
The husband said that he didn’t seek any legal advice in relation to the Originating Claim and Statement of Claim because he “was not really sure of the reaction of [his] lawyers at the time”. The husband said that he was dissatisfied with his lawyer’s performance at that time. He also said he didn’t want to spend any money on defending an action with which he agreed.
The husband was in Iran at the beginning of 2015. It seems that Ms KK alleges that her work commenced in March 2015. The husband denied that he had any specific conversations in relation to this claim with his brother who lives in Tasmania. The husband’s brother, who lives in Hobart, goes to Iran three or four times a year and the husband visits his brother in Tasmania from time to time.
The husband did not put into proper form any evidence of any results of asserted investigations by Ms KK nor did the husband file in proper form any expert witness from Iran to provide evidence to this court. Given that on Ms KK’s version this work had been completed by January 2016 (before the commencement of the first part of the hearing in February 2016), I find that what Ms KK asserts in her Originating Claim is not true. I do not accept that $1.45 million could be expended without any results at all being provided in any admissible form for this litigation. Even more remarkable if $70 million in the wife’s name had been discovered in Iran.
The husband’s action, in consenting to the order in the form in which it was made, was on its face in breach of two sets of orders. Firstly, order 2.1 made by Judge Hughes on 14 October 2014 which was in the following terms:
The Respondent Husband be restrained from withdrawing any amounts from bank accounts under his control, including but not limited to [a list of bank accounts are then specified].
Secondly, on 12 February 2016 in the presence of the husband, I made an order (Exhibit 40) which was in the following terms:
1. That pending further order the husband be and hereby is restrained from dealing in a way with and/or causing or permitting any dealing with respect to:
1.1 His interest in and to the property at U Street, Suburb V
1.2 St George bank account number … in the name of the husband
1.3 Commonwealth Bank Goal Saver account … in the name of the husband; and
1.4 Commonwealth Bank Viridian line of credit account …, save only for purpose of reduction of the current amount owing on such facility.
2. That the wife be at liberty to provide a copy of these orders to each of the Commonwealth Bank, St George Bank and the Australian Capital Territory Office of Regulatory Services.
The largest withdrawal ($473,800) made by the husband in May 2016 pursuant to the consent orders of the ACT Supreme Court, came from an account which I specifically froze in the husband’s presence. The husband acknowledged that he knew that the St George account was frozen by the injunction made in these proceedings. The husband said, but I do not accept, that he didn’t know the “legality” of the injunction. It was put to him that what he had done in the Supreme Court proceedings was to enter into consent orders which were inconsistent with his obligations under the injunctions. The husband said that he wasn’t sure what would happen. He said he was just responding to demands made by his niece and he didn’t know what the effect of the Supreme Court order would be on the St George bank account. I found that evidence quite disingenuous. The husband is an intelligent person. I find he understood that the injunctive order froze these funds.
The husband further asserted that what he intended to do by the Supreme Court order was to satisfy his relatives that he acknowledged the debt for work done on his behalf in Iran and he was trying to cooperate with whatever action it took to secure those funds or register his niece’s interest as a creditor. He further said that he didn’t think that the Supreme Court consent order would remove the injunction of the Family Court. Again I find that evidence quite disingenuous given what the husband then did after the order was made which I discuss below. I find that the husband set out on a deliberate course of action to attempt to circumvent the terms of the Family Court order by creating an order in another court that he could present to the bank in the hope that he could secure the release of funds.
The husband was very coy on the question of whether or not he had any knowledge of whether or not his niece had received the funds. In the end he said he wasn’t aware as to whether or not his niece had received the funds at all but he had satisfied himself that Ms JJ (the woman who held the husband’s niece’s power of attorney) had received the funds.
The husband was asked whether or not he had caused monies to be transferred from the joint account to an account in his sole name. He denied that he had done so. He was shown a bank document which was a copy of a statement of the bank account in his sole name. The husband then admitted that he had arranged for funds to be withdrawn from his own St George bank account by way of bank cheque for which he had paid a fee. The husband admitted he had gone to the bank and arranged for this bank cheque himself and had then taken the bank cheque, attended a branch of the NAB and deposited that cheque into an account in Ms JJ’s name. He also organised the electronic transfer of three other smaller amounts from his other accounts.
During cross examination the husband agreed he had produced no documents in relation to these transactions. He agreed that he would have been given documents relating to the withdrawal of the bank cheque and the deposit into the NAB of the bank cheque but had not produced any of those documents. The wife had found out about what the husband had done through her own inquiries. On the last day of the hearing the husband produced two bank cheques adding to $473,985.42 made out to Ms JJ on 30 May 2016 and a customer receipt for the same amount (Exhibit 80).

The husband had initially asserted that he had no communication with his niece about any of this, but then inconsistently claimed that he was acting on instructions of his niece at all times.
As I have already said, the proceedings in the Supreme Court of the ACT were a sham and an abuse of process orchestrated by the husband in breach of specific orders I had made freezing funds.

EARLIER FUNDS THE HUSBAND SAID HE PAID HIS NIECE FOR INQUIRIES ABOUT THE WIFE’S ASSETS IN IRAN

Prior to the February 2016 orders, the husband asserted that he paid his niece in Iran an amount of $850,000. Again this is an apparent breach of an earlier order made by Judge Hughes. When challenged about that the husband replied “I have had so many bank accounts injuncted and changed that I’ve really lost track of most of them”. The husband said that prior to the commencement of the hearing the $850,000 was delivered in instalments to a man who came to his door at the Suburb V property. He knew the man as Mr CC. The husband said he did not contact Mr CC but only had dealings with him when he came to the Suburb V property. The husband initially said that the last occasion that that had happened was around Christmas 2015. The husband said that he had handed $850,000 to Mr CC “over some months” and then corrected that to “probably over six months”. The husband said he would get the money from the bank because “that’s what I was instructed to do”. The husband asserted that he had never known Mr CC before his niece made an arrangement for Mr CC to attend his home and that he had no association with him or no dealings with him at all prior to the occasions that Mr CC turned up to collect the cash. The husband agreed that on at least one or two occasions, hundreds of thousands of dollars of cash was handed to Mr CC on one visit. The husband said he didn’t get any receipt of any kind from Mr CC. When asked how he checked Mr CC’s identification the husband said his niece was on the telephone with him at the time he handed the money over to Mr CC and is niece verified Mr CC’s identity as she had dealt with him in the past. The husband asserted that his niece knew Mr CC and he thought that she had dealt with him in the past in similar financial transactions.
The husband was asked why he did not use Mr CC when most recently transferring the amount of $473,800 out of the St George account to Ms KK (via Ms JJ). The husband said they were not his niece’s instructions to him.
The husband was asked about a withdrawal of $229,018.67 from his CBA account (Exhibit 56) in February 2016. The husband was asked where that money went. He guessed that some of that was given to Mr CC as well. He said he didn’t know the specific amount but he recalled that he took out large amounts to give to Mr CC. The husband was unsure if all of the $229,000 went to Mr CC.
The husband initially said that the first payment to Mr CC was halfway through 2015 but he thought it might have been later than June/July. The husband then changed his evidence in respect of when the last payment was made saying it was paid some time before the start of the hearing in February 2016.
The husband was taken to page 10 of his 6 February 2016 financial statement. That document includes a statement by the husband that in the 12 months prior to February 2016 he had withdrawn $959,739 in cash and used it to pay down debt in Iran, legal fees in Australia and for personal expenses. The husband had also liquidated his Hesta fund which had $187,000 in it. The husband was quite unclear as to where the $850,000 had come from to pay his niece. He thought some of it may have been in cash and some of it may have been from the Hesta liquidated fund. The husband was then taken to page 10 of his 14 December 2015 financial statement. That financial statement indicated no disposal of any assets in the twelve months prior to 14 December 2015. This led the husband to change his evidence about when Mr CC had come to his door with the husband asserting it must have been between 14 December 2015 and 9 February 2016 (the first day of the trial). The husband was then taken to page 8 of his financial statement of 14 December 2015. Nowhere in that document did the husband set out that he had a liability to his niece or a liability in respect of investigations in Iran. The husband then said that he was unaware of the debt to his niece as at 14 December 2015. That evidence would be fanciful if in fact the evidence given by the husband about the costs of investigations in Iran were true and if the assertions made in the Originating Claim lodged in the ACT Supreme Court and the particulars provided in relation to when the investigations took place in that Statement of Claim were also true. The Statement of Claim actually alleges that the agreement was entered into between the husband and his niece in March 2015 and that the work under the agreement had been completed by 12 January 2016. The Statement of Claim asserts the cost of the work was $1,470,000 and that $850,000 had been paid by the husband by 11 May 2016.
None of that comfortably fits with anything the husband said in his evidence except the husband did amend his story saying that the transactions might have happened commencing after December 2015 as opposed to the middle of 2015. Given the nature or the quantum of the alleged debt, it is inconceivable that the husband would not have known at the end of 2015 that he had a huge debt to his niece if it was true.
It was put to the husband that in a previous affidavit he had asserted he had been living frugally. The husband accepted that he had made that statement and asserted that that statement was true apart from the money that he had allegedly lost at the casino; the money he had expended on various women and the money he had committed to paying his niece for investigations in Iran. As I comment elsewhere when recounting the contributions the husband had made to the conservation and improvement of assets, the husband has emphasised how careful he had been in the financial stewardship of the matrimonial assets. This history that he gives of handing large wads of cash over to a man that he did not know are inconsistent with the evidence that he otherwise gives as to how careful he was with money.
The husband was taken to part of his affidavit where he had in 2015 dealt with an assertion by the wife that she believed he was moving money overseas. The husband denied that he had moved any money overseas. When asked about the $850,000 he had given in cash upon Mr CC visiting his house at various times, he asserted that he did not know if that money had gone overseas or not. He implied that that money still might remain in Australia but the husband did not know where his niece was holding that money.
I simply do not accept the husband is being truthful about where he has put the large amount of money he has withdrawn from the various accounts which he controlled despite being restrained from doing so.

ONE OR TWO POOLS?

As previously mentioned, the husband submitted that the court should look at the actual assets and liabilities of each of the parties as set out in their financial statements (excluding the husband’s pension) and divide the whole of those net assets equally between the parties. In doing so the husband was inviting the court to take into account the particular characteristics of his pension which he received as a result of his medical diagnosis and treat it in a pool separate from the other assets and liabilities.
The husband’s submission is that his pension is an asset of a different nature to the other assets on the balance sheet. The wife concedes that it is an asset that is paid on a periodic basis and that it cannot be converted into a lump sum. The husband asserts it is the only source of income which he currently has and is likely to have in the future and I took him to be asserting that this asset should not be ascribed a value at all but rather treated as his only source of income when dealing with s 75(2) considerations.
Senior counsel for the wife submitted that a two pooled approach was not necessary given that the wife was effectively seeking a 100 per cent splitting order and was prepared to accept that if she did so it would be at its value in accordance with the Family Law (Superannuation) Regulations 2001 (Cth) (“Family Law (Superannuation) Regulations”).
The Full Court in Coghlan & Coghlan (2005) FLC 93-220 said that they considered the preferred approach was to place any superannuation interests in a list that was separate from lists of items of property. The Full Court however went on to say that a trial judge has discretion as to how superannuation interests will be treated in a particular case. In this case there is no issue in relation to “the real nature” of the relevant superannuation interest. Given that the wife seeks the whole of this asset I find that it is appropriate at this point to leave it on the balance sheet at its value in accordance with the Family Law (Superannuation) Regulations.

BALANCE SHEET

On 9 February 2016 a balance sheet was marked as Exhibit 1. That balance sheet became the basis of discussion during submissions. There are 82 line items on the balance sheet. Rather than initially reconstructing the balance sheet, it is probably sensible that I maintain the item numbers as discussed during submissions for ease of reference. The balance sheet is set out below with an additional column entitled “agreed/determined”. At the conclusion of the table I make comments in relation to individual items on the balance sheet, including the reasons for the determination in respect of disputed items.

Assets
Item no.	Title	Description	Husband’s value	Wife’s value	Agreed/ Determined	Value
1.	J	U Street, Suburb V	1,250,000	1,250,000	Agreed	$1,250,000
2.	J	W Property, ACT	565,000	565,000	Agreed	$565,000
3.	J	Y Street, Suburb Z	NK	1,275,000	Determined	$1,275,000
4.	W	NN Street, City AA	NK	$100,000	Determined	$100,000
5.	J	CBA CDIA …35	$3	$3	Agreed	$3
6.	J	CBA MISA …07	$0	$0	Agreed	$0
7.	W	ANZ …28	$8,350	$8,350	Agreed	$8,350
8.	W	ANZ …21	$2,262	$2,262	Agreed	$2,262
9.	W	ANZ …90	$10,964	$10,964	Agreed	$10,964
10.	W	Citibank …46	$1,629	$1,629	Agreed	$1,629
11.	W	Citibank …04	$2,196	$2,196	Agreed	$2,196
12.	W	CBA CDIA …12	$47,593	$47,593	Agreed	$47,593
13.	W	Bank account in Iran	$150,000	$473	Determined	$473
14.	W	Citizens Bank account #5-8	$152,423	$0	Determined	$0
15.	H	CBA direct invest a/c …61	$0	$0	Agreed	$0
16.	H	CBA account …12	$0	NK	Determined	$0
17.	H	CBA complete access …95	$867	$867	Agreed	$867
18.	H	CBA direct invest a/c …78	$0	$0	Agreed	$0
19.	H	CBA complete access …03	$0	NK	Determined	$0
20.	H	CBA netbank saver …60	$0	$0	Agreed	$0
21.	H	CBA netbank saver …36	$0	$0	Agreed	$0
22.	H	CBA goal saver …68	$0	NK	Determined	$0
23.	H	CBA goal saver …76	$0	NK	Determined	$0
24.	H	St George account …81	$0	$0	Agreed	$0
25.	H	St George account …43	$0	NK	Determined	$0
26.	H	St George account …78	$0	$1,135	Determined	$1,135
27.	H	St George account …56	$0	$0	Agreed	$0
28.	H	Iran account	$0	NK	Determined	$0
29.	H	PP Bank Iran account …57	$0	$9,921	Determined	$9,921
30.	H	PP Bank Iran account …80	$0	$62,008	Determined	$62,008
31.	H	PP Bank Iran account …00	$0	$94,360	Determined	$94,360
32.	H	PP Bank Iran account …30	$0	$6,740	Determined	$6,740
33.	W	German motor vehicle	$66,700	$66,700	Agreed	$66,700
34.	H	4WD motor vehicle	$4,500	$15,700	Determined	$8,500
35.	W	ComSec share portfolio	$0	$0	Agreed	$0
36.	W	Various share holdings	$233,040	$233,040	Agreed	$233,040
37.	H	Company QQ sponsored shares	$0	$0	Agreed	$0
38.	H	Issuer sponsored shares	$0	NK	Determined	$0
39.	W	Persian rugs	$19,000	$19,000	Agreed	$19,000
40.	W	Swiss watch	NK	$5,000	Determined	$5,000
41.	W	Jewellery	NK	$2,000	Determined	$2,000
42.	W	Furniture and effects	NK	$5,000	Determined	$0
~~43.~~	W	~~Money held in trust by FGD~~	~~$125,642~~	~~$125,642~~
~~44.~~	H	~~Money held in trust by II Layers~~	NK	NK
45.	H	Funds withdrawn on 17.10.14 from St George account	$0	$46,800	Determined	$46,800
46.	H	Funds withdrawn 27.3.15	$0	$300,000	Determined	$300,000
47.	H	Costs orders 21.9.15, 21.10.15 and 21.7.16	$0	$98,061	Determined	$98,061
Liabilities
Item No.	Title	Description	Husband’s value	Wife’s value	Agreed/ Determined	Value
48.	J	CBA home loan – W Property	$574,850	$574,850	Agreed	$574,850
49.	J	CBA home loan – Suburb Z	$741,449	$741,449	Agreed	$741,449
50.	J	CBA mastercard	$0	$0	Agreed	$0
51.	W	Visa	$0	$0	Agreed	$0
52.	W	Visa	$0	$7,666	Determined	$0
53.	W	Debt for legal fees	$0	$0	Agreed	$0
54.	W	Lease – German motor vehicle	$66,700	$66,700	Agreed	$66,700
55.	W	CGT liability	$0	NK	Determined	$0
56.	H	CBA line of credit …58	NK	$223,752	Determined	$223,752
57.	H	CBA diamond awards card	$13,439	$0	Determined	$0
58.	H	CBA Mastercard …74	$2,915	$0	Determined	$0
59.	H	Tax debt 2015	$4,500	$0	Determined	$0
60.	H	Tax debt previous financial years	$4,500	$0	Determined	$0
61.	H	Outstanding rates – Suburb V	$10,700	$0	Determined	$0
62.	H	Unsecured loan	$0	$0	Agreed	$0
63.	H	Child support	$8,700	$0	Determined	$0
64.	H	Hire/purchase lease	$0	$0	Agreed	$0
Superannuation
Item No.	Title	Description	Husband’s value	Wife’s value	Agreed/ Determined	Value
65.	W	HESTA (accumulation)	$196,399	$196,399	Agreed	$196,399
66.	H	HESTA (accumulation	$0	$0	Agreed	$0
67.	H	PSS Pension (defined)	$0	$927,687.72	Determined	$927,687.72
Additional Assets
Item No.	Title	Description	Husband’s value	Wife’s value	Agreed/ Determined	Value
68.	H	St George account …21	$0	NK	Determined	$0
69.	W	Monies in trust by wife’s solicitors	$109,161.15	$109,161.15	Agreed	$109,161.15
Add Backs
Item No.	Title	Description	Husband’s value	Wife’s value	Agreed/ Determined	Value
70.	H	Hesta funds withdrawn by husband	$0	$187,185	Determined	$187,185
71.	H	Monies from St George ..78	NK	$473,820	Determined	$473,820
72.	H	Proceeds of sale of shares 1.1.16 – 5.12.16	NK	$1,097,864	Determined	$1,097,864
73.	H	Paid legal costs in Australia	$0	$0	Agreed	$0
74.	H	Paid niece overseas	$0	$0	Agreed	$0
75.	W	Paid legal fees	$400,545	$498,606	Determined	$400,545
79.	H	Paid legal fees in Iran	$28,000	Nk	Determined	$28,000
Additional Liabilities
76.	H	Supreme Court legal fees	$70,000	NK	Determined	$0
77.	H	Outstanding debt to cousin for Iran investigations	$200,000	$0	Determined	$0
78.	H	Expected legal fees in Iran	$10,000	$0	Determined	$0
80.	J	Suburb Z strata levies	$0	$18,067	Determined	$18,067
81.	W	Share of MISA account	$284,000	$0	Determined	$0
82.	H	CGT on sale of shares	NK	$0	Determined	$0
Total assets including superannuation						$7,638,263.87
Total liabilities						$1,624,818
Total net assets						$6,013,445.87

Item 3 – The Suburb Z property

At the commencement of the hearing, the parties had agreed on the value of the Suburb Z property in accordance with an expert valuation of $1,275,000. The husband made two applications to have the Suburb Z property revalued.
The first application came in the form of a request contained in paragraph [16] of an affidavit the husband filed on 22 November 2016. That part of the husband’s affidavit was initially drawn to the court’s attention by the lawyer for the wife when the matter was listed before me on 25 November 2016. In that paragraph the husband says that if he and the wife can’t agree on an updated valuation in relation to the Suburb Z property he requested that the court order an updated valuation or in the alternative that the property be put up for sale.
The wife indicated that her position was that it was too late to be agitating for a revaluation of the Suburb Z property and in the alternative if the Suburb Z property was to be revalued then so should the two other Canberra properties be revalued. The values of the properties that had been agreed on for the hearing had initially been based upon valuations carried out by Mr P in relation to the Suburb Z property and Mr NN in relation to the Suburb V and W Property properties.
There was a discussion as to whether or not it was feasible to have revaluations (including time that might be required to deal with any dispute relating to the revaluation) ready within six working days. Neither party indicated that they had made any inquiry as to the availability of the valuers to carry out the revaluation. There was discussion during submissions about whether the husband was able to fund the new work that would be required to be done by the valuer should the husband’s written request be successful. The husband indicated he had not made any inquiry about costs and he did not know whether he could afford it at that time. The request by the husband for revaluation of the Suburb Z property was made in circumstances where the wife was asserting that, because of the amount of funds that the husband had removed from accounts, she should receive the balance of the remaining net assets. Given my other findings in these Reasons for Judgment, the husband was disingenuous when asserting he had no capacity to fund the revaluation of the Suburb Z property. The husband also made no commitment to funding the valuation of the Canberra properties. The husband did ask whether or not he could have an adjournment so he could contact valuers and have another listing prior to the hearing date. I indicated that my trial calendar did not allow me to provide that time.
Given that I was unable to be satisfied on 25 November 2016 that experts were available to update valuations and that the costs of those valuations, whatever they might be, could be paid for, I found the application had been made at too late a stage and that to grant the application would have put in serious jeopardy the ability to conclude a hearing that had already gone over part heard on the dates that had been scheduled to conclude the hearing.
Accordingly, I dismissed the husband’s application to obtain from a single expert or otherwise rely upon any other evidence in relation to the value of the Suburb Z property.
On 7 December 2016, two days short of the hearing finishing, I considered a similar application by the husband to have the Suburb Z property valued. The husband said he did not have the capacity to pay for a valuation (again based upon findings I have made, this is a disingenuous submission) but he sought access to funds from the line of credit which was frozen. The husband did not indicate that he’d had any communication with the valuer who had done the earlier valuation in relation to the Suburb Z property. The husband indicated that he was happy to borrow money to undertake a further valuation of the Suburb Z property. I indicated to him that had he borrowed money at an earlier time and made the application at an earlier time the application might have been approached differently.

I found that there was no indication that the previous valuer of the Suburb Z property could carry out a valuation between 7 December and 9 December and I dismissed the husband’s renewed application for updated valuations.
During the discussion the husband said that he would propose as part of the property settlement orders that he take the Suburb Z property at the higher figure of $1.45 million but that application was not pursued by the husband in final submissions and based on my findings and the husband’s evidence as to his disposition of assets there is no basis upon which, on the husband’s case, the husband could take the Suburb Z property at that higher figure.
The offer by the husband to take the property at a higher figure is not evidence of value of the Suburb Z property. The only admissible evidence I have in relation to the Suburb Z property is the valuation carried out by Mr P of OO Valuers. I also rely upon the agreement of the parties at the commencement of the hearing as to the value of the property. The value of the Suburb Z property will be determined to be $1,250,000.

Item 4 – The wife’s property at NN Street, City AA

The wife owns a property in City AA. In her financial statement filed on 22 January 2016 she asserts that the value of that property is AUD$100,000. No valuation of that property was proffered by the wife. Notwithstanding the amount of money the husband alleges he spent on investigations in Iran, the husband has not had admitted into evidence any valuation of that property. I am left with the wife’s estimate.

Item 13 – The wife’s bank account in Iran

In final submissions the husband asserted that he had presented evidence that the value of item 13 was $150,000. There is no admissible evidence to support this assertion. The husband has not filed an affidavit of a translator so any Iranian document in Persian is not in evidence in his case.
I am left with the wife’s value of $473.

Item 14 – The wife’s Citizens Bank account

The wife asserts that there is AUD$152,423 in US currency of an equivalent value deposited on behalf of the children in the United States. At the commencement of the hearing the husband accepted that figure. In final submissions the husband asserted that that figure was in US dollars and interest had been accumulating in that account. Senior counsel for the wife submitted that the figure was accepted by both sides as the value in AUD.
In about 1997 the wife’s father gave her approximately US$580,000 to compensate her for transferring the Suburb EE property (in which the wife previously held shares) into her brother’s name. The wife deposited $180,000 of that amount into a separate account in the United States for the children firstly in Ms S’s name and then split the account into two in both the children’s names. The husband was cross examined about these funds and made some comments in which he sought to recast his case about funds held in the United States. In final submissions the husband asserted that the money was held in the wife’s account and was her money not the children’s. There is no evidence that this is the case and the wife confirmed in her oral evidence that the money in this account belongs to the children.
I find that these funds are the property of the elder child of the marriage who is an adult and the younger child of the marriage who will be an adult in late 2017. It is not appropriate to place a value for these deposits on the balance sheet.

Item 16 – The husband’s CBA account ending ...12

This account was one that was disclosed in the husband’s financial statement of 3 November 2014. The wife asserts that she made requests for the original records in relation to that account but none were provided. The wife further alleges that she attempted to subpoena those records without success. The husband in submissions said that he believed the account was closed. The account is listed in his most financial statement to be worth nil. I note the assertion by the wife about the failure of the husband to provide records so that the wife could check this account but based on the evidence no amount can be ascribed to that account.

Items 19, 22, 23, 25 and 68 – Various bank accounts of the husband

Senior counsel for the wife made the same submissions in relation to these accounts as was made for item 16. The husband asserts that all of these accounts have subsequently been closed. The evidence does not allow me to ascribe any value to any of these items.

Item 26 – The husband’s St George account ending …78

I accept the husband had $1,135 in this account. The husband has not produced objective evidence to demonstrate that that amount has gone from the account.

Items 28 – 32 – The husband’s bank accounts in Iran

The wife asserts that a general item should be placed on the balance sheet entitled ‘Iran accounts’. The husband asserted there was a minimal balance in his Iranian account when he closed it but produced no corroborative documents in that regard. Orders were also made on 19 December 2014 requesting that the husband produce documents relating to his Iranian bank accounts. Those orders have not been complied with in any meaningful way.
Apart from the wife’s suspicions in relation to the husband having monies in an account in Iran, the only specific evidence the wife has been able to find of accounts is contained in annexure SS to the wife’s affidavit of 19 June 2015 and are represented in items 29-32 on the balance sheet.
At paragraph [134] of the wife’s affidavit filed 19 June 2015 the wife stated, without objection from the husband, that she had recently discovered that the husband had at least four US dollar bank accounts in Iran. The wife annexed (without objection) a translation of a document prepared by PP Bank Iran. That statement from the bank indicates that the husband as at 12 February 2015 had savings in Iran in four bank accounts totalling US$128,360.
Based on an exchange rate of 1USD = 1.348 AUD (being the exchange rate suggested by senior counsel for the wife as updated from the exchange rate on Exhibit 1). Those amounts convert as follows:

USD

AUD

$7,360

$9,921

$46,000

$62,008

$70,000

$94,360

$5,000

$6,740

The husband was cross examined about the bank statements. He stated that he disputed that there was such an amount standing to his credit at that time because he asserted he had closed those accounts several months earlier in June 2014. The husband produced no admissible evidence to support this assertion. He subsequently disputed the authenticity of the translated document produced by the wife and suggested it was a forgery but provided no evidence from the bank or otherwise to establish that was so. The husband does not list monies in an account with PP Bank in any of his financial statements but in his financial statement filed 3.11.14 he lists $1,500 in a ‘Bank Account in Iran’ and an unknown amount in a ‘Bank account in Iran (Held on Trust for Mother)’. In his affidavit filed 3 February 2016 the husband states that before his mother’s death, she transferred those monies to him to continue her charitable work after her death. The husband says that he never accessed the account or withdrew funds from the account.
I conclude that I am unable to ascribe any value for item 28 (that is accounts the husband may still have in Iran) however based on the document from PP Bank I am satisfied that the husband has had available to him the amounts referred to in that document and I place those values, in Australian dollars, on the balance sheet at items 29 – 32.

Item 34 – The husband’s 4WD motor vehicle

The husband in his financial statement filed 14 December 2015 estimated that the value of this motor vehicle was $8,500. The wife seeks to rely upon a Redbook midpoint figure of $15,700 but did not seek to tender any Redbook printout (perhaps because the husband could have successfully objected to its tender). The wife is not entitled to rely upon a Redbook midpoint number. In the alternative the wife seeks to rely upon the husband’s concession in his December 2015 financial statement. The husband in his most recent financial statement estimated $4,500 as the value of his 4WD motor vehicle. In submissions he said that the reason for doing so was that 4wd diesel engines had been the subject of reports and the price had crashed as a result. He asked me in effect to take judicial notice of the bad publicity that had engulfed his particular brand of motor vehicle. Absent any proper evidence of valuation by the husband, (given that no document from Redbook was tendered before me) the wife is entitled to rely upon the husband’s estimate of value in his financial statement filed 14 December 2015 and I adopt that estimate for the balance sheet.

Items 35 and 36 – Commsec Share Portfolio and various share holdings

During final submissions these two items were discussed together. Between January 2015 and November 2016 the wife disposed of about $620,000 worth of shares. Exhibit 47 sets out the wife’s current position namely that as at 5 December 2016 the shares that she held had a value of $233,040.
The husband, although he said he was very disheartened, reluctantly accepted that the wife’s shareholding was currently $233,040. The contention in relation to the wife’s shareholding is about how the wife used the money from her disposition of shares. Exhibit 83 is an overall reconciliation of the funds the wife has had since separation and how they have been expended. The expenditure has been on personal living expenses, legal fees, mortgage payments and CGT/tax. I find the expenditure on Exhibit 83 has been justified by the wife. Her living expenses are set out in the various financial statements contained in Exhibit 23 and are reasonable. The wife’s legal fees are counted against the wife in item 69 and 75 on the balance sheet.

Item 38 – The husband’s Issuer Sponsored Shares

The husband says that he no longer has any issuer sponsored shares. The husband was cross examined about various estimates he gave for this asset as at November 2014. The husband gave evidence about his uncertainty as to the entirety of the value of those shares. As recently as February 2016 he deposed as to being uncertain as to the value of those shares that he owned.
The husband’s evidence about the issuer sponsored shares contains a number of inconsistent statements. In his first financial statement filed on 3 November 2014, the husband ascribed an estimated value of $150,000 to the issuer sponsored shares held in his name. In his oral evidence he asserted that the $150,000 figure was incorrect. The husband said that his lawyers at that time had put down a higher figure for their value which the husband did not agree with. The husband ascribed values of $50,000 and $49,700 in his September and December 2015 financial statements respectively. In his financial statement filed 6 February 2016 the husband says that he had two amounts of issuer sponsored shares totalling $59,411 ($47,146 and $12.265). In his oral evidence the husband said that he in fact had transferred those shares to his portfolio of Company QQ shares. In his financial statement filed in November 2016 he says that he sold about $35,000 of the issuer sponsored shares and at this date held no shares in his name. In his oral evidence the husband said that the $35,000 figure could not be correct given that on the February 2016 financial statement the value of the shares was $59,411. The husband said that the figures he provided for the value of the shares were estimates based on his recollection or on the state of the financial market at that time. The husband provided no information as to the detail of the transfer or disposal of the issuer sponsored shares.
Whilst the wife may submit that the husband either doesn’t know or is not prepared to disclose the value of the issuer sponsored shares or what has become of them, I do not have sufficient evidence to ascribe any value to them on the balance sheet and they will be marked as nil.

Item 40 – Swiss watches

The wife has estimated the value of $5,000 for this item. The watches were purchased when the wife received the proceeds of sale of her unit in City AA in 2012. There is nothing mentioned under item 43 ‘other personal property’ in her financial statement of 22 January 2016 (nor any of her previous financial statements). It was however listed by the wife on Exhibit 1 at an estimate valued $5,000. In her oral evidence the wife stated that she had purchased two watches, one for herself and one for Ms S costing about USD$8,500 each. The husband submits that the wife’s estimated value for her Swiss watch is “awfully” underestimating its value. I am left with the wife’s estimate.

Item 41 – Jewellery

The wife asserts that her jewellery is worth $2,000. The husband disagrees with that amount but puts no alternate value on the wife’s jewellery. The husband asserts he provided details of what he believed the wife had in his affidavit of February 2016, which is accurate, but the estimate he gave was objected to and struck out. I am left with the wife’s estimate.

Item 42 – Wife’s furniture and effects

Again the wife estimates that her furniture and effects are worth $5,000 (Exhibit 1). The husband asserts that the wife would have removed more than that from the matrimonial home. The husband accepts that he has not himself placed any value of his own furniture and effects saying that he wasn’t really sure about the value of it and it was what the wife had left behind and it was quite old because she had picked the best and left the worst.
The wife attended the former matrimonial home on 25 February 2015. She says that she attended the property with Ms H to collect some of her and the children’s personal property. The wife arrived at the property at about 4.00pm and discovered that the locks had been changed. She subsequently called a locksmith to open the door. The wife’s friend, Mr J, attended the property after the locksmith had changed the locks. At paragraph [26] of the wife’s affidavit she lists the items which she removed from the property which items do not include cash. In her oral evidence the wife said that she later gave the new set of keys to Ms S.
Ms H gave evidence about the wife going to the Suburb V property on 25 February 2015. She originally couldn’t remember a locksmith coming but did when her memory was refreshed. The husband’s cross examination really didn’t shake her evidence which was to the effect that the wife collected only those things that the wife had given evidence that she had collected and had not removed hundreds of pages of hard copy bank statements, financial records, property management and taxation records, medical, personal and private records and mails and substantial amounts of documents relating to his legal defence in the Family Court nor did she remove cash estimated to be $28,000 from the house as alleged by the husband. I find that Ms H was a witness whose evidence I could accept as being corroborative of the wife’s version of what she removed from the house on that day.
Mr J was the other witness of the wife’s attendance at the Suburb V property on 25 February 2015. This witness’s evidence was corroborative of the evidence of the two women who attended the premises on this day. This man brought his relatively big car which he used to take items from the house at the direction of the wife. He confirms that those things that were removed from the home were the items that the wife had set out in her evidence. He made appropriate concessions for example that he did not know what the wife might have put in her own motor vehicle. He described the wife, the other woman and himself leaving in separate motor vehicles at the same time and saying goodbye to one another.
Given that the evidence of the wife and her two corroborative witnesses was not compromised by any cross examination, I accept the version as to what they removed from the former matrimonial home on this day (Mr J had no memory of a locksmith attending whilst he was there which meant that the women were probably at the house prior to him arriving). I accept Mr J’s evidence that the wife was anxious and uncomfortable whilst in the house and he encouraged her to get the things that she wanted from the house.
In all the circumstances I conclude that it is not equitable to place a value against the wife’s furniture and effects if no value is being placed against the husband’s furniture and effects and I will mark that item on the balance sheet as nil.

Exhibits 63 and 85 – Evidence relevant to items 45, 46, 71 and 72

Exhibit 63 are copies of five financial statements filed by the husband throughout the course of the proceedings on 3 November 2014, 21 September 2015, 14 December 2015, 6 February 2016 and 22 November 2016 respectively. Exhibit 85 is an aide memoire analysing some of the information contained in those five financial statements which the husband has filed.
The wife draws particular attention to movements in items 37 and 38 on those financial statements being funds in bank and investments (shares).
I set out that part of Exhibit 85:

Item No.

Item Description

3 November 2014

21 September 2015

14 December 2015

6 February 2016

22 November 2016

37

Funds in bank

$939,102

$434,451

$482,214

$472,376

$600

38

Investments (shares)

$1,308,973

$1,131,222

$1,066,922

$305,106

$0

Commsec (Company QQ) shares

$1,158,973

$1,081,222

$1,017,222

$245,695

$0

Issuer sponsored shares

$150,000

$50,000

$49,700

$59,411

$0

These items do not include money that the husband had and has subsequently withdrawn from the Hesta superannuation fund (item 70: $187,185) nor any amount the husband has in bank accounts in Iran (discussed above).
As can be seen from the above table, as at 3 November 2014 the husband asserted in his financial statement that he had standing to his credit in funds in bank $939,102 and investments in shares of $1,308,973 being a total of $2.248 million. Senior counsel for the wife made the point that when stating the funds in bank, the husband has taken into account only one half of the value of the joint account with the Commonwealth Bank (account …83) which account was divided between the parties in accordance with orders made on 27 February 2015. The wife asserts that she has only a limited understanding as to what the husband has done with the funds he had in the bank and shares since November 2014.
One difficulty conceded by the wife was that the evidence does not permit me to conclude that the shares which the husband valued in November 2014 at $1.3 million were in fact realised for that amount. There is no complete record provided by the husband of the disposition by him of those shares. Doing the best the wife can she leads evidence, from documents produced by the husband, that from 1 January 2016 and 5 December 2016 the husband’s sale of the CBA Company QQ (Commsec) shares resulted in proceeds of a little under $1.1 million (not $1.3 million). Having said that the husband’s estimate as to the value of the shares in December 2015 was a dollar figure which was relatively close to what the records show the husband received upon the disposition of the shares.
The movements recorded in the husband’s financial statements are linked to the following items on the balance sheet:
Item 45withdrawal of funds by the husband on 17 October 2014 from the St George account $46,800
Item 46withdrawal of funds by the husband on 27 March 2015 $300,000
Item 71withdrawal by the husband from St George account 9378 $473,820
Item 72proceeds of sale of shares between 1 January 2016 and 5 December 2016 $1,097,864
Total:$1,918,484
The wife also makes the point that between November 2014 and at least December 2015 the husband had the dividend stream for over $1 million worth of shares together with income that he received from his superannuation pension. Senior counsel for the wife submits that the dividend, the pension and monies the husband may have had in Iran were more than sufficient to cover reasonable living expenses and legal expenses for that period leaving the husband with the core assets unexpended.

The husband asserted that the Bahar family, including the wife, is a family of some wealth in Iran, asserting that the husband’s father was a government minister which “sadly” meant that the husband’s father as a minister had the capacity to take a lot of money from contractors. This allegation by the husband in final submissions that the wife’s father was a corrupt person finds no basis in the evidence.
There are three interests in real estate that the wife has still in her name in Iran that she says she has committed to the Bahar Foundation. Her assertion is that she has transferred her beneficial interest in those properties to the Foundation who currently hold those properties and will sell them when they need cash to put into a particular development or project whether it be a school or hospital or the like. The wife has not provided a value of those three interests in real estate in Iran to the court presumably on the basis that her evidence is she has given them away and no longer has a beneficial interest in them.
Mr O confirmed in his evidence that he is committed to carrying on the good works that his father commenced in Iran.
Although good works have been done over the years by the wife’s father, Mr O and the Bahar Foundation, as indicated above, the property that the Bahar Foundation currently holds is unknown. There are three properties in which the wife has legal title currently that she asserts she has transferred the beneficial interest to the Foundation, in respect of which she asserts she has transferred the beneficial interest to the Foundation. There is nothing of a legally binding nature however (apart from an understanding between siblings) that that is any type of final transfer. Mr O treats the Foundation’s money on the basis that it can be intermingled with his own personal funds. I find there is some substance in the submission that if the wife needed to she could call upon, particularly Mr O, to assist her financially in the future. In that sense, the Foundation can be seen as a financial resource for the wife. The value of that financial resource however is something that I do not have any real understanding of but it is one that is significantly diluted by the fact that there are six other siblings involved in whatever asset might be there and I do accept that the Foundation will continue to play some role in giving its money away for charitable purposes.
There has historically been financial transactions involving Mr O and the wife.
Mr O gave evidence in his affidavit that he holds money in bank accounts outside Iran. He said he once asked the wife to open a bank account using her name. She opened that bank account at DE Bank in the United States and he deposited $100,000 into it. His evidence is that he has entirely controlled that account and the wife has not controlled that account in any way and he closed the account in December 2006. He said he also had an account with EF Bank in Europe. He opened that in April 2010 and because of Iranian sanctions, he gave the wife’s address in Suburb FG, Canberra as the address for that account. He asserts that that account is his and not his sister’s. He attaches a letter from the bank that is corroborative of that.
Mr O agreed that he was a citizen of Australia and America and he agreed that his wife was a citizen of America and Country GH. He also said that his wife lived and owned a home in the United States. He owns that property in the United States jointly with his wife.
Mr O was tested as to why he had put the account that he said was his at DE Bank in the United States at the wife’s address in Canberra in circumstances where he had a residence in the United States. His explanation for that was that he didn’t have his wife’s cooperation in relation to share dealing and he didn’t want her knowing about that share dealing and that is why he didn’t make his home address in the United States the address because his wife might have found out about it.
I accept Mr O’s evidence that the reasons why he might have wanted to not have his address on international investments was because international sanctions prevented bank accounts being held by people with addresses in Iran.
Whilst the husband demonstrated in Mr O’s cross examination that he may have had other options to put accounts in international addresses, there is no reason in my view to doubt Mr O’s evidence that he had obtained his sister’s cooperation to establish accounts with her address for the purposes of holding his money outside Iran.
This history does however add further weight to the contention that the wife’s siblings and particularly Mr O are a financial resource which is available to her and I find there is substance to that contention.
I am prepared to infer that Mr O is a person of some financial substance. Mr O developed a major complex in Iran in the suburb of HI which was built on land given to him by his father about 50 years ago. The husband asked him whether his father usually divided his assets equally between his children and Mr O replied that he didn’t know what he did. There is no evidence I have that would contradict Mr O’s oral evidence about this land coming to him from his father and him developing it in his own right.
In relation to possible funds in Iran, the husband’s response was that he on a number of occasions offered an unlimited authority to the wife to undertake an international search of invested funds in his name anywhere in the world including Iran. The husband asserts that he was involved in what was an incredibly expensive process if he is to be believed for virtually no return in terms of information or concrete evidence about the wife’s assets in Iran.
The wife is not cohabiting with any other person.
The husband asserts that he is not cohabiting with any other person but there was some evidence about what the husband says he spends on relationships with women.
The husband was asked about his girlfriends. He wouldn’t name them but he agreed that he had three girlfriends. None of them live in Iran but they travel to Iran and have family in Iran and he consequently did not wish to name them. It appeared there was also an additional girlfriend in Tasmania and possibly even two. The husband was very coy and particularly vague in relation to any relationship that he had with a woman post separation. The husband declined to give names of any women with whom he had or is having a relationship on the basis that he feared that if they travelled back to Iran bad things might happen to them at the hands of the Bahar family and he had given his assurance to all of them that he wouldn’t disclose their details or their names.
The husband agreed that he had told the Child Support Agency that he had three ladies who had become his friends who he spent time with instead of being alone and he agreed he had told the Child Support Agency he compensated them by giving them gifts in the sum of $980 a week which included their travel expenses. He also told the agency that he was spending about $450 in relation to their travel as well as his own travel per week. No documents from the Child Support Agency were tendered.
The husband in his affidavit of February 2016 at paragraph 13 indicated that as at that date he had commenced a casual relationship with a woman who lived in Hobart. He said that they did not live together and had no plans to do so. The husband denied that the identity of that woman was Ms Ms JJ (Ms JJ held Ms KK’s (the husband’s niece’s) power of attorney in the proceedings in the Supreme Court of the ACT). The husband denied that she was the woman or that he was friendly with that woman.
The wife will remain solely responsible for a short time for T who is currently 17 years of age. Ms S is also at home and has completed her tertiary education.
The husband in final submissions said that Ms S has obtained a honours degree from IJ University, and she also has an Honours or Masters degree at JK University and is very employable. He has encouraged her to get a job but he thinks that she has not because of these proceedings. I have no evidence of any of this.
There is limited prospect of the husband providing any financial support for T. The husband has commenced proceedings in the AAT to challenge the child support assessment. The husband said that the Child Support Agency currently have assessed him as having a debt to the wife in the sum of $8,700. The basis upon which the husband is disputing the assessment is an assertion by him that the wife has failed to properly disclose her financial circumstances to the Child Support Agency.
The husband points to litigation that the wife’s brother has brought against him in defamation as being a potential cost to him. I don’t know enough about that litigation to place any weight upon what burden it might place upon the husband. The husband in final submissions said that the wife’s brother was seeking damages for emotional distress as well as indemnity costs.
The wife sought an order that the husband reimburse her for 50 per cent of the money she has paid for the valuation of the Suburb Z property. Exhibit 61 is the invoice from OO Valuers in relation to the payment of the valuation on the Suburb Z property (in respect of which the wife seeks a half payment by the husband). The husband in oral evidence indicated he had no memory of being asked to make a contribution to that payment, although he did agree that the letter sent to the valuers was sent on joint instructions. I don’t intend to make an order for reimbursement but I take into account that the wife has paid the whole of the costs of that valuation in the sum of $1,650.

Conclusion on s 79(4)(d)-(g) considerations

I take into account all the matters discussed above in assessing s 79(4)(d)-(g) considerations on an overall basis. I take into account as the most weighty matters the fact that the husband’s medical condition is more severe than the wife’s and it has a greater effect on their respective potential future earning capacity. The wife has property in Iran of which she is still the legal owner, even though I accept she has given away her beneficial interest. I find that she could recover it if she chose to do so. I have found that the wife has as a financial resource, the relationship she has with her siblings, particularly Mr O.
Overall I find that there should be a 5 per cent adjustment in favour of the husband for s 79(4)(d)-(g) considerations.

JUST AND EQUITABLE

Exhibit 76 is a letter from the trustee of the Public Sector Superannuation Scheme dated 6 December 2016 indicating that they do not envisage any difficulty in giving effect to the orders proposed by the wife. Accordingly I find the trustee has been afforded procedural fairness.
Based upon my findings in relation to contributions and s 79(4)(d)-(g) considerations the net assets of the parties would be divided as to 50 per cent to the wife and 50 per cent to the husband. That division could be achieved as set out in the following table:

Husband gets 50.0 per cent
Assets
Item No.	Description	Percentage	Value
5	CBA CDIA …35	100 per cent	$3
17	CBA complete access …95	100 per cent	$867
26	St George account …78	100 per cent	$1,135
29	PP Bank Iran account …57	100 per cent	$9,921
30	PP Bank Iran account …80	100 per cent	$62,008
31	PP Bank Iran account …00	100 per cent	$94,360
32	PP Bank Iran account …30	100 per cent	$6,740
34	4WD motor vehicle	100 per cent	$8,500
45	Funds withdrawn on 17.10.14 from St George account	100 per cent	$46,800
46	Funds withdrawn 27.3.15	100 per cent	$300,000
47	Costs orders 21.9.15	100 per cent	$98,061
70	Hesta funds withdrawn by husband	100 per cent	$187,185
71	Monies from St George …78	100 per cent	$473,820
72	Proceeds of sale of shares 1.1.16-5.12.16	100 per cent	$1,097,864
79	Paid legal fees in Iran	100 per cent	$28,000
67	PSS Pension (defined)	63.76 per cent	$591,502
Husband pays Wife		$43
Net Assets to Husband		$3,006,723
Wife gets 50.0 per cent
Assets
Item No.	Description	Percentage	Value
1	U Street, Suburb V	100 per cent	$1,250,000
2	W Property, ACT	100 per cent	$565,000
3	Y Street, Suburb Z	100 per cent	$1,275,000
4	NN Street, City AA	100 per cent	$100,000
7	ANZ …76	100 per cent	$8,350
8	ANZ2…29	100 per cent	$2,262
9	ANZ …76	100 per cent	$10,964
10	Citibank …38	100 per cent	$1,629
11	Citibank …00	100 per cent	$2,196
12	CBA CDIA …71	100 per cent	$47,593
13	Bank account in Iran	100 per cent	$473
33	German motor vehicle	100 per cent	$66,700
36	Various share holdings	100 per cent	$233,040
39	Persian rugs	100 per cent	$19,000
40	Swiss watch	100 per cent	$5,000
41	Jewellery	100 per cent	$2,000
65	HESTA (accumulation)	100 per cent	$196,399
67	PSS Pension (defined)	36.24 per cent	$336,186
69	Monies in trust by wife's solicitors	100 per cent	$109,161
75	Paid legal fees	100 per cent	$400,545
Liabilities
Item No.	Description	Percentage	Value
48	CBA home loan - W Property	100 per cent	$574,850
49	CBA home loan - Suburb Z	100 per cent	$741,449
54	Lease – German motor vehicle	100 per cent	$66,700
56	CBA line of credit …58	100 per cent	$223,752
80	Suburb Z Strata levies	100 per cent	$18,067
Wife receives			$43
Net Assets to Wife			$3,006,723

Standing back, I consider that a distribution of the assets and liabilities in this manner would result in a just and equitable property settlement order.
As indicated in item 67 on the distribution table there will be a splitting order in relation to the husband’s pension so that the wife receives 36.24 per cent of payments from time to time and the husband receives 63.76 per cent.
In addition, as discussed above, the husband is to be liable (within 42 days) to make a payment in the sum of $10,700 towards the discharge of the rates on the Suburb V property. In the event that the husband fails to comply with that order then the wife will be entitled to an additional 1.15 per cent of the husband’s pension which percentage is calculated by dividing $10,700 / $927,688.
The lawyers for the wife are to notify the Commonwealth Superannuation Corporation (“the Trustee”) in writing after the expiration of 42 days as to whether or not the husband has or has not complied with the order to pay the rates on the Suburb V property.

I certify that the preceding three hundred and seventy (370) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Watts delivered on 1 February 2017.

Associate:

Date: 1.2.2017

SCHEDULE 1

Wife’s Minute of Orders Sought

That the Husband pay to the wife, by way of property settlement, the sum of $1,241,690.00.
To give effect to Order 1 the Husband pay the Wife within 42 days of the date of this order (“the due date”).
That upon receipt of the payment, the Wife transfer to the husband, at his expense, the whole of her interest in the property referred to in Certificate of Title Volume … Folio … DP … known as [U] Street, [Suburb V] in the Australian Capital Territory (“the [Suburb V] property”) and the whole of her interest in the property referred to in Certificate of Title Volume … Folio … DP … known as [W Property, X Street] in the Australian Capital Territory (“the [W Property]”).
That upon receipt of the payment, the Husband transfer to the Wife, at her expense, the whole of his interest in the property referred to in and contained in Certificate of Title Folio … known as [Y Street, Suburb Z] in New South Wales (“the [Suburb Z] property”).
That upon the transfer referred to in order 3, the Husband indemnify and keep the wife indemnified in relation to all and any liability, howsoever existing or arising, with respect to the [Suburb V] property and the [W Property], including any liability which she may be called upon to meet by virtue of any covenant contained in any mortgage registered on the title of the [Suburb V] property or the [W Property].
That upon the transfer referred to in order 4, the Wife indemnify and keep the Husband indemnified in relation to all and any liability, howsoever existing or arising, with respect to the [Suburb Z] property.
That in the event that the Husband fails to pay to the Wife all of the monies due under Order 1 within the time specified under Order 2, then the following provisions shall apply:
a.the Husband will pay to the Wife interest on such amount as is outstanding, such interest to be calculated from the date that the payment fell due under Order 2, at the rate prescribed by s117B of the Family Law Act and the Family Law Rules;
b.the Husband transfer to the Wife, free of all and any encumbrance, the whole of his interest in the [Suburb V] property and [W Property];
c.The Husband vacate the [Suburb V] property and deliver up vacant possession to the Wife;
d.The Wife sell the [Suburb V] property and [W Property] and apply the proceeds of sale in the following order and priority:
i.to pay all selling costs including agents commission, auctioneers expenses (if any) and conveyancing fees;
ii.To pay any debt secured by mortgage over those properties;
iii.to pay to herself the balance thereafter in reduction of any money owed to her by the Husband pursuant to these Orders;
iv.To pay to herself an amount equal to all arrears of rates owing with respect to the Suburb V property as at the date of settlement of the sale of that property;
v.in the event that there remains a surplus after those payments, that surplus will be paid to the Husband.
e.Prior to the settlement of the sale of the [Suburb V] Property the husband pay all sums and do all acts and things, necessary to discharge the mortgage over the [Suburb V] Property which secures the CBA Line of Credit
That until the Husband has paid to the Wife all amounts due to her pursuant to Order 1 and Order 7 the Husband is restrained from selling, alienating, transferring or otherwise disposing of any shares or property owned by him save to pay the proceeds of such transaction to the Wife towards that debt.
That in accordance with paragraph 90MT(1)(b) of the Family Law Act 1975:
a.The Wife (or such other person to whom a splittable payment is payable) is entitled to be paid the specified percentage of each splittable payment from the Husband’s interest in the Public Sector Superannuation Scheme (“PSS”);
b.The Husband’s entitlement (or the entitlement of such other person to whom a payment may be made out of the Husband’s interest) in the PSS is correspondingly reduced by force of this Order;
c.The specified percentage for the purposes of this Order is 100.00 per cent; and
d.This Order has effect from the operative time and the operative time is four business days after service on the Trustee.
That the Commonwealth Superannuation Corporation (“the Trustee”) shall do all such acts and things and sign all such documents as may be necessary to:
a.calculate, in accordance with the requirements of the Family Law Act 1975 the entitlement awarded to the Wife in the immediately preceding clause of this Order; and
b.pay the entitlement whenever the trustee makes a splittable payment from the Husband’s interest in the PSS.
That the Court notes:
a.That in accordance with section 90MZD of the Family Law Act 1975,
i.the Trustee has been accorded procedural fairness in relation to the making of this Order;
ii.the Trustee has been provided with a copy of the proposed Order; and
iii.this Order binds the Trustee

The Trustee, after service upon it of a sealed copy of this Order, has obligations under Public Sector Superannuation Trust Deed to create an associate pension in the name of the Wife;
Any payments from the Husband’s superannuation interest in the PSS are made after the trustee has created an associate pension in the Wife’s name in the PSS are not splittable payments in accordance with Division 2.2 of the Family Law (Superannuation) Regulations 2001; and
The Trustee will be relieved of its obligations to calculate and split payments under this Order in the event that an associate pension is created in the name of the Wife.
Subject to these Orders, as against the Husband, the Wife is declared to be the sole owner of:
a.any money in any account in her name with any bank or other financial institution;
b.her superannuation entitlements;
c.all goods, chattels and personal property in her possession;
d.any other property or ‘chose in action’ in her ownership or possession.
Subject to these Orders, and to any Order subsequently made by way of enforcement of these Orders, as against the Wife, the Husband is declared to be the sole owner of:
a.any money in any account in his name with any bank or other financial institution;
b.his superannuation entitlements;
c.all goods, chattels and personal property in his possession;
d.any other property or ‘chose in action’ in his ownership or possession.
That within 7 days the Husband reimburse the Wife for 50 per cent of the money she paid for the valuation of the [Suburb Z] property with the total amount paid being $1,650 and the amount to be reimbursed being $825.
That the Wife consents to and will seek a permanent stay of the proceedings in Iran save for the purposes of obtaining a divorce under Iranian law. IT IS NOTED that the wife says she has withdrawn the proceedings in Iran which she had previously instituted there.
Each of the parties is restrained from doing any act or thing which may cause the other party to be prevented from entering into, or leaving, Iran.
That if either party refuses, fails or neglects to execute any document necessary to put these Orders into effect 7 days after being requested to do so, and any such refusal, failure or neglect in proved by Affidavits filed and served by or on behalf of the party alleging this, The Registrar, Deputy Registrar or other Offer of the Family Court at Canberra be and is hereby appointed pursuant to Section 106A if the Family Law Act 1975 to execute such document in the name of such party.
That there be liberty to apply in relation to the implementation of these Orders.

[2017] FamCA 40

1 February 2017

Key Legal Topics

Areas of Law

Family Law

Property Law

Legal Concepts

Jurisdiction

Procedural Fairness

Remedies

Stay of Proceedings

Statutory Construction

USD	AUD
$7,360	$9,921
$46,000	$62,008
$70,000	$94,360
$5,000	$6,740

Item No.	Item Description	3 November 2014	21 September 2015	14 December 2015	6 February 2016	22 November 2016
37	Funds in bank	$939,102	$434,451	$482,214	$472,376	$600
38	Investments (shares)	$1,308,973	$1,131,222	$1,066,922	$305,106	$0
Commsec (Company QQ) shares	$1,158,973	$1,081,222	$1,017,222	$245,695	$0
Issuer sponsored shares	$150,000	$50,000	$49,700	$59,411	$0