BARTLETT & SHOLL

[2013] FCCA 1080

FEDERAL CIRCUIT COURT OF AUSTRALIA

BARTLETT & SHOLL [2013] FCCA 1080

Catchwords:
FAMILY LAW – Property settlement – undefended hearing – lack of participation and disclosure by the applicant wife – substantial assets retains by the applicant wife.

Legislation:  

Family Law Act 1975 (Cth)
Federal Circuit Court Rules2001

Federal Circuit Court Regulations

Stanford v Stanford (2012) 87 ALJR 74
Ferraro & Ferraro (1993) FLC 92/335
Clauson & Clauson (1995) FLC 92/595
Bevan & Bevan [2013] FamCAFC 116
Chang v Su [2002] FLC 93 117

Applicant: MS BARTLETT

Respondent: MR SHOLL

File Number: MLC 3487 of 2010

Judgment of: Judge McGuire

Hearing date: 12 August 2013

Date of Last Submission: 12 August 2013

Delivered at: Melbourne

Delivered on: 28 August 2013

REPRESENTATION

Solicitors for the Applicant: No appearance

Solicitors for the Respondent: Unrepresented

ORDERS

1. That this application proceed undefended.

2. That the husband be solely entitled to, and to the exclusion of the wife, the following:

   (a)the assets of the Sholl Family Super Fund ([Y] Investments Proprietary Limited acting as Trustee);

   (b)the husband’s superannuation policies and entitlements with [omitted] and [omitted];

   (c)all items of personalty, chattels, motor vehicles and boat currently in the possession of or under the control of the husband as at the date of these orders;

   (d)the balances of any bank accounts or like investments in the name of the husband or to the benefit of the husband as at the date of these orders;

3. That the wife be solely entitled to, and to the exclusion of the husband, the following:

   (a)the proceeds of sale of any plant and equipment and stock sold by her following separation;

   (b)all items of personalty and chattels in the possession of or under the control of the wife as at the date of these orders;

   (c)any motor vehicle in the possession of or under the control of the wife as at the date of these orders;

   (d)the balances of any bank accounts or like investments in the possession of or under the control of the wife as at the date of these orders;

   (e)the benefits of any superannuation policies or entitlements in the name of or to the benefit of the wife as at the date of these  orders, but subject to these orders.

4. That pursuant to s.90MT(4) of the Family Law Act 1975, the court allocates a base amount of $35,000 to Mr Sholl of Property K in Queensland, from Ms Bartlett’s interest in [H] Super Fund.

5. That in accordance to section 90MT(1)(a) of the Family Law Act 1975 the court:

   (a)creates an entitlement on the part of Mr Sholl to be paid the amount calculated in accordance with Part 6 of the Family Law (Superannuation) Regulations;

   (b)makes a corresponding reduction in the entitlement Ms Bartlett would have had in [H] Super but for these orders;

6. That whenever the trustee of [H] Super makes a splittable payment out of Ms Bartlett’s interest in [H] Super, then the trustee shall do all acts and things and sign all documents as may be necessary to pay the entitlements created in accordance with this order, in accordance with the requirements of the Family Law Act 1975 and the Family Law (Superannuation) Regulations 2001.

7. That the operative time for these orders is four (4) business days after the service of the Order on the Trustee. 

8. That the applicant serve a copy of these orders on the trustee of [H] Super Fund within 14 days of the date of these orders.

9. If no objection is received from the Trustee, and no application is made by the Trustee to vary such orders within 21 days after the service of these orders, then these orders take effect and become binding on the trustee 28 days after service. 

10. Having been accorded procedural fairness, the Trustee is bound by these Orders to observe the Trustee obligations set out under the Family Law Act 1975 and Family Law (Superannuation) Regulations 2001.

11. That pursuant to s.90MT(4) of the Family Law Act 1975, the court allocates a base amount of $45,347 to Mr Sholl of Property K, in Queensland, from Ms Bartlett’s interest in [B] Superannuation Fund.

12. That in accordance to section 90MT(1)(a) of the Family Law Act 1975 the court:

    (a)creates an entitlement on the part of Mr Sholl to be paid the amount calculated in accordance with Part 6 of the Family Law (Superannuation) Regulations;

    (b)makes a corresponding reduction in the entitlement Ms Bartlett would have had in [B] Trust but for these orders;

13. That whenever the trustee of [B] Superannuation Fund makes a splittable payment out of Ms Bartlett’s interest in [B] Superannuation Fund, then the trustee shall do all acts and things and sign all documents as may be necessary to pay the entitlements created in accordance with this order, in accordance with the requirements of the Family Law Act 1975 and the Family Law (Superannuation) Regulations 2001.

14. That the operative time for these orders is four (4) business days after the service of the Order on the Trustee. 

15. That the applicant serve a copy of these orders on the trustee of [H] Super Fund within 14 days of the date of these orders.

16. If no objection is received from the Trustee, and no application is made by the Trustee to vary such orders within 21 days after the service of these orders, then these orders take effect and become binding on the trustee 28 days after service. 

17. Having been accorded procedural fairness, the Trustee is bound by these Orders to observe the Trustee obligations set out under the Family Law Act 1975 and Family Law (Superannuation) Regulations 2001.

18. That liberty is reserved to the respondent to apply in respect of the implementation of the orders affecting superannuation funds and in respect of procedural fairness accordingly.

19. That the wife sign and return to the husband within 14 days of provision to her of a withdrawal of Caveat lodged by her against title to the husband’s property at Property K, in the State of Queensland.

20. Pursuant to s.106A of the Family Law Act 1975, the Registrar of the Federal Circuit Court of Australia be enabled and entitled to sign any and all documents so as to:

    (a)give effect to the transfer or registration of any title or ownership relevant to these orders;

    (b)to sign a Withdrawal of Caveat lodged by the wife as against the title to the husband’s property at Property K, in the state of Queensland.

21. That the wife be responsible for one half of any liability struck by the Australian Taxation Office relevant up to the date of these orders in respect to the Sholl Family Super Fund ([Y] Investments Proprietary Limited acting as Trustee).

IT IS NOTED that publication of this judgment under the pseudonym Bartlett & Sholl is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL CIRCUIT COURT OF AUSTRALIA

AT MELBOURNE

MLC 3487 of 2010

MS BARTLETT

Applicant

And

MR SHOLL

Respondent

REASONS FOR JUDGMENT

Background

1. These are proceedings for property settlement.  The applicant is the wife, Ms Bartlett.  She filed a notice of discontinuance on 5 August 2013.  The matter was called when it came on for trial on 12 August 2013.  There was no appearance by or on behalf of the wife.  Consequently, the matter proceeded to undefended hearing on the Response of the husband, Mr Sholl. 

2. Mr Sholl relied on his trial affidavit filed 30 July 2013, together with a financial statement filed on 29 July 2013.  He also asked me to read a sworn financial statement of the wife filed 26 April 2013. 

3. The parties commenced a relationship in about late 1995.  They married [in] 1998, and finally separated on 23 June 2008.  They were divorced on 5 September 2012.  There is one child of the marriage, being [X], born [in] 2000.  There were parenting proceedings in respect to [X].  The husband, however, did not pursue final orders given, he says, that he lives in Queensland and [X] lives with the wife near [S] in Victoria.  The husband says generally that the wife has thwarted his time with [X]. 

4. The husband lives near [R] in Queensland and is employed as an [omitted].

5. The wife has qualifications and experience as an [omitted]. Her financial statement deposes that she is unemployed. The husband suggests that Ms Bartlett continued to operate a farming enterprise post separation but also deposes to her becoming bankrupt in about March 2012. 

6. The husband pays child support for [X] in the sum of $287 per week. 

7. The husband has remarried.  The wife’s domestic circumstances are unknown.

8. It is proper that these reasons note that the wife historically deposed to “mental abuse and trauma” at the hands of the husband.  Intervention orders were taken to remove the husband from the jointly owned property.  The husband denies the allegations generally and in their particulars.  As such, given the lack of participation in this trial by the wife, I can make no positive findings in respect of her allegations and place no weight on them. 

9. The husband says generally that the wife has attempted to frustrate these proceedings, and despite being the applicant.  The matter commenced in Queensland and was later transferred to Victoria.  The wife was at times represented.  Orders for discovery were made in 2011 and the matter listed for trial in the sittings of the court at Shepparton in November 2011.  The wife became self-represented.  She sought adjournments.  She later alleged that she was unaware of the trial date.  She did not actively participate in the proceedings by way of filing documents or complying with directions after the matter had transferred to Victoria.

10. It is clear on the evidence that the husband actively sought disclosure but none was forthcoming and that the wife had possession or control of the majority of the assets of the parties. 

11. The application proceeded on an undefended hearing in May 2012 in the circuit at Shepparton. On 28 June 2012, the wife filed an application seeking to have the orders made pursuant to the undefended hearing set aside.  That occurred and the matter was listed before Walters FM, as he then was, in Shepparton on 14 November 2012, whereupon trial directions were again made and the matter listed for trial in the sittings of the court in Melbourne on 1 May 2013 with an estimated hearing time of two to three days. 

12. Due to his Honour’s elevation, the matter was further adjourned to trial on 2 April 2013 at which time the husband complained again of a lack of disclosure by the wife.  The trial date was further vacated and listed with priority on 12 August 2013 at which time the wife did not attend court.

13. During their relationship the parties operated a farming enterprise in Victoria specialising in [omitted].  Their business was operated under an umbrella of complex company structures.  The husband worked also as a subcontractor. 

14. The husband alleges that the wife improperly, fraudulently and/or illegally, has removed the funds from a self-managed superannuation fund to funds in her own name or of which she has control.  

Orders Sought

1. The husband seeks orders as follows:

   a)That he be the sole beneficiary of the assets of the Sholl Family Super Fund;

   b)That there be superannuation splits of 100 per cent to the husband of the funds held in the wife’s [H] Super ($35,000), and [B] Trust ($45,347) superannuation funds.

   c)That the wife be responsible for one half of any outstanding taxation liabilities for the Sholl Family Superannuation Fund;

   d)That the wife remove at her own expense, a caveat she has placed against the title of the husband’s property at Property K, in Queensland;

   e)That the wife’s application for spousal maintenance be dismissed.

2. The husband also sought a cash adjustment from the wife and other orders in respect of some assets.  In his submissions to me, however, he acknowledged the wife’s bankrupt and focused on the orders above to achieve, in his words, “to just bring the matter to an end and get on with my life.”

The Law

1. It was generally accepted until recently that the approach of the courts in respect of property settlement was well settled.[1] That is, the court was firstly to identify the property of the parties, inclusive of assets, liabilities and financial resources together with superannuation entitlements. The court is to attribute a value to each item. Then the court must identify and assess the parties’ contributions under sub-headings set out in section 79(4) of the Family Law Act 1975 (“the Act”). After determining an alteration of property interests on the basis of contributions, if any, the court then turns its attention to any relevant factors under section 75(2) of the Act, and as to whether any further consequent adjustment should take place.

   [1] See Ferraro & Ferraro (1993) FLC 92/335; Clauson & Clauson (1995) FLC 92/595.

2. There was then a requirement pursuant to section 79(2) of the Act (and controversially called “the fourth step”) for the court to stand back and consider whether the proposed orders arising from the above process were “just and equitable”.

3. This “settled” pathway has recently been considered and commented upon by the High Court in Stanford v Stanford[2].  It seems now that the appropriate course of consideration is as follows:

   a)To identify, according to ordinary common law and equitable principles, the existing legal and equitable interests of the parties, or either of them, in property;

   b)To ascertain at this point whether it is just and equitable to make any order between these parties altering their interests in the property.  The facts in Stanford were unusual, and it is generally accepted that there will be little difficulty for the court determining “justice and equity” between separated parties in proceeding to an alteration of their property interests. 

   c)The court must identify and assess the contributions of the parties with reference to the factors in ss.79(4)(a), (b) and (c), and thereby determining their contribution based entitlements.

   d)The court is to identify and assess any relevant matters referred to in ss.79(4)(d), (e), (f) and (g), including those relevant matters in s.79(2), and then determine whether any further adjustment should be made after determination of the contribution based entitlements of the parties.

   e)The court should then finally consider the effect of its findings and assessments as to contributions in section 75(2) factors and the orders that it intends to flow from such findings, and consider “justice and equity” in all of those circumstances.

   [2] (2012) 87 ALJR 74

4. Importantly, the “justice and equitable” considerations is not determined from and conflated with a simple mechanical determination of contributions and relevant s.75(2) factors. The justice and equity consideration is carried out within “all of the circumstances of the case”.

Is it just and equitable to make orders between these parties?

1. These parties cohabited for some 10 years.  During that period, they accrued property and ran a farming enterprise through a web of company structures.  The husband alleges that the wife has retained a number of joint assets for her own benefit and to his detriment.  Those circumstances alone dictate that it is proper to enter into the process of making orders for alteration of property interests between these parties. 

The Property Pool

1. The husband confesses to a lack of detailed and particularised knowledge of the property pool given the lack of disclosure by the wife and her actions since separation.  Nevertheless, he deposes to the assets, liabilities and superannuation as follows:

Assets	Ownership	Estimated Value
VW Golf Motor Vehicle	Unknown	$12,000.00
Sales proceeds of my boat	Husband	$1,500.00
Interest as a beneficiary (after liquidation of [K] Pty Ltd)	[K] Pty Ltd atf the [Sholl] Estates Family Trust	Nominal
Half interest in the property at Property K, in the State of Queensland	Husband	$250,000.00
Cash Savings	Wife	Unknown
Cash Savings	Husband	Nominal
Furniture	Wife	$10,000.00
Furniture	Husband	$3,000.00
Motor Vehicle	Wife	Unknown
National Addbacks for the sale of matrimonial property by Ms Bartlett	Wife	$308,500.00
Assets Subtotal (in excess of)	$569,000.00
Liabilities	Ownership	Estimated Value
Liability to the ATO	Husband	$(8,000.00)
Liability to St George Bank relating to VW Golf motor vehicle	[M] Pty Ltd atf the Sholl Family Working Trust	$(15,000.00)
Half interest in the mortgage encumbering the property at Property K, in the State of Queensland	Husband	$(245,000.00)
Liability relating to wife’s motor vehicle	Wife	Unknown
Potential penalties to the ATO relating to early release of superannuation entitlements	Husband	Unknown
Potential penalties to the ATO relating to early release of superannuation entitlements	Wife	Unknown
Liability relating to motor vehicle	Wife	Unknown
Liability to the ATO (payable within eight (8) months	Husband	$(140,520.00)
Liabilities Subtotal (in excess of)	$398,520.00

Superannuation	Ownership	Estimated Value
Superannuation entitlements held in the Sholl Family Super Fund ([Y] Investments Pty Ltd acting as trustee)	Unknown	$139,000.00
Superannuation entitlements held in the [X] Superannuation Fund (Ms Bartlett acting as trustee)	Unknown	Nominal
Superannuation entitlements of Ms Bartlett held in [A] Super	Wife	$48,810.57
Superannuation entitlements of Mr Sholl held [omitted] Group	Husband	$14,000.00
Superannuation entitlements of Mr Sholl held in [omitted]	Husband	$9,300.00
Superannuation entitlements of Ms Bartlett held in [H] Super	Wife	$38,956.17
NET SUPERANNUATION ASSET POOL	$196,956.17
TOTAL NET ASSET POOL	$367,436.17

Superannuation  

1. The husband says that the Sholl Family Super Fund valued at approximately $140,000.  He deposes, however, that the wife removed up to $117,000 from that fund. She put it $80,000 of these monies together with a sum of approximately $80,000 from the sale of [omitted] and plant and equipment, placing the combined moneys into the [X] Trust Fund which in 2009 had cash assets of approximately $160,000, but which, on the husband’s enquiries, now sit at $150.  The husband says that the tracing of these moneys go so far as the wife’s [H] Super Fund ($35,000), and the wife’s [B] Trust Fund ($45,347).  On my calculations, this accounts for only $80,347 of the funds the husband says were removed from the [X] Trust Fund and the proceeds of the sale of stock and plant and equipment.

The Australian Taxation Office

1. The husband’s property pool notes a liability to the Australian Taxation Office of $140,520.  After hearing his submissions, it appears that this is the maximum liability that could be struck and that his accountant is working towards negotiating a lower sum.  He says that the wife was responsible for making payments to the Taxation Office and doing returns.  He says that she neglected these roles and hence the debt and penalties. 

2. The husband says that there was, in fact, approximately $330,000 in the self-managed superannuation fund at the date of separation, but that up to $117,000 was removed by the wife.  The taxation liability at its maximum could be as much as $140,000.  If the fund is found to be non-compliant and taxed at a rate of 45 per cent rather than 15 per cent for compliant funds, penalties could also be imposed for the improper withdrawal of the moneys by Ms Bartlett from the super fund.

Contributions

1. The husband deposes that he have the following assets at the date of commencement of the relationship:

   a)An interest in [N] Proprietary Limited - $120,000;

   b)A loan made to his father and repayable in the sum of $35,000;

   c)A half interest in a partnership – [omitted] - $80,000;

   d)Superannuation entitlements - $35,000.

1. The husband said that he had no significant liabilities at that time.

2. The husband deposes that Ms Bartlett had cash savings of approximately $25,000, being the settlement from her previous marriage. 

3. The husband was employed throughout the relationship as a subcontractor and worked on the farming properties.  He says that he averaged $120,000-$124,000 gross per annum in earnings.  He also received bonuses of up to $50,000 per annum.

4. The husband deposes that the wife worked in a number of part-time positions and then established a business [omitted].  The business was not profitable.  She then worked in an [omitted] and as a [omitted].  The husband deposes that the wife retained her own earnings in separate bank accounts and utilised them for her own benefit rather than towards the family.  The husband concedes, however, that the wife assisted on the farm. 

5. Mr Sholl says that the wife was mainly responsible for the control of the family finances and that it was she who created the web of entities, and that it was only after a separation, and when the wife was represented by solicitors that he learned the full extent of the complex company arrangements and partnerships.

6. Throughout the relationship the parties were responsible for the actual and financial support of Ms Bartlett’s daughters from a previous marriage, [Y] and [Z].  [Y] moved to live with her father in 2006.  [Z] remained with the parties until separation.  The parties were responsible for the payment of the children’s day to day needs including school expenses.

7. Following separation, and until 20 May 2011, the husband attended to the mortgage payments on the former matrimonial home at Property W in Victoria.  The mortgagee bank eventually foreclosed on that property as the wife would not agree to a financial restructuring of the loan.  The husband understands that no equity remained after the sale of the property by the bank, and taking into account the bank’s costs of the foreclosure and sale. 

Relevant section 75(2) factors

1. The child of the parties, [X], lives with the wife.  The husband has little or no time with [X].  He pays $287 per week child support.

2. The husband is employed.  He has an income of approximately $93,000 per annum from that employment.  He deposes to his current wife having her own income of approximately $63,000 per annum.

3. The husband says that in March 2012, he was informed that the wife had “filed for bankruptcy”. But pursuant to section 75(2)(o), I can consider other circumstances of the parties in making adjustments following the alteration of the interests on the basis of contribution. I accept the husband’s evidence that the wife retained the greater majority of the assets at separation. She reinforced her possession by way of intervention orders. Her retention of those assets was also enforced by her greater financial control during the relationship. I accept the following evidence of the husband being unchallenged, and as findings of fact:

   a)The wife retained use of the former matrimonial home and property at Property W.  She did not make mortgage payments, and that default caused foreclosure. 

   b)A Toyota Prado motor vehicle retained by the wife at separation was sold in about mid-2009 for approximately $40,000, and with a net of $15,000 retained by the wife. 

   c)That the wife has retained or disposed of the following items to the exclusion of the husband:

   i)Approximately 25 stud cattle with an estimated value of $45,000;

   ii)Approximately 60 commercial cattle with an estimated value of $68,000;

   iii)Machinery with an estimated value of $20,000;

   iv)Approximately 10 horses with an estimated value of $18,000;

   v)Cattle yards with an estimated value of $21,000;

   vi)Three motorcycles with an estimated value of $14,000;

   vii)Tools with an estimated value of $6000;

   viii)VW motor vehicle with an estimated value of $2000;

   ix)Horse trailer with an estimated value of $2000;

   x)Box trailer with an estimated value of $2000;

   xi)Lawnmower with an estimated value of $2000;

   xii)Tractor attachments with an estimated value of $16,000;

   xiii)Three tractors with an estimated value of $39,000;

   xiv)Pumps and two engines with an estimated value of $3500;

   xv)A farm ute with an estimated value of $6000.

4. The husband deposes that these items are unaccounted for.  Following the recent decision of the Full Court in Bevan & Bevan[3], it might be more appropriate, in my view, to deal with these matters under section 75(2)(o), rather than as “add backs”.

   [3] [2013] FamCAFC 116

5. The husband adduces some evidence by way of annexures to his affidavit corroborating his claim that cattle was sold.[4]

   [4] Husband’s affidavit sworn 30 July 2013, paragraph 58-63

Discussions and conclusions

1. I am satisfied on the chronological history of this matter that the wife has deliberately failed to participate in these proceedings.  This is the second occasion on which this matter has proceeded to undefended hearing.  She has not complied with orders and directions.  Given that she has retained the greater majority of the assets of the parties and has neglected to make disclosure, then I am satisfied that she has endeavoured to thwart both the entitlements of Mr Sholl and the process of this court. 

2. I accept that the wife has withdrawn and/or transferred moneys from the Sholl Family Superannuation Fund.  This may result in the fund being designated non-compliant.  The Australian Taxation Office can seek civil or criminal penalties.  If non-compliant then the usual tax rate of 15 per cent will not be applicable and will be replaced by tax at the rate of 45 per cent. 

3. I accept the husband’s evidence that a sum of $68,000 was removed from Sholl Family Super Fund in about July 2009, and put towards the maintenance of and payments for assets of the parties.  The husband’s unchallenged evidence is that he understood the wife to have made an attempt to withdraw these moneys, but that he authorised the bank pay them into his own account, but did not realise that they were from the superannuation fund. 

4. I accept the husband’s unchallenged evidence that the wife withdrew a sum of $70,000 from the [Sholl] Super Fund on 22 December 2009.  

5. I accept the husband’s evidence that he only became aware of the [X] Superannuation Fund after the parties’ separation.  On the evidence before me it is reasonable to conclude that the funds in that superannuation fund were rolled over by the wife from the Sholl Family Super Fund.[5]

   [5] Husband’s affidavit sworn 30 July 2013, paragraph 87.

6. I further accept the husband’s unchallenged evidence that the wife has withdrawn $80,543.78 from the [X] Superannuation Fund between October 2011 and February 2012, and that she has utilised a company trustee for this purpose.[6]

   [6] See husband’s affidavit sworn 30 July 2013, paragraph 91.

7. I accept the husband’s evidence at paragraph 98 of his trial affidavit that a sum of $116,543.78 remains unaccounted in respect of moneys removed from the Sholl Family Super Fund.  This amount together with the current balance and the $68,000 which came into the hands of the husband equates with his evidence as to the funds in the superannuation account at separation of $340,000.  I further accept that the current balances of the wife’s superannuation policies with [B] Trust ($45,347) and [H] Super ($35,000), can be traced to the above course of conduct perpetrated by the wife. 

8. I accept the husband’s unchallenged evidence[7] that the [X] Family Trust still holds assets from the farm, including a tractor, a slasher, a front-end loader valued to $17,000, a farm ute ($6000) and cattle ($10,000). 

   [7] See husband’s affidavit sworn 30 July 2013, paragraph 226.

9. I am satisfied that the wife has retained the greater majority of the assets of the parties.  I am satisfied that she has attempted to avoid the jurisdiction of this court through non-participation, non-disclosure and a complex web of trusts and companies.  I accept that she has disposed of assets and transferred others, and to this extent, has benefited significantly from the use of and disposal of the parties’ assets and resources since separation.

10. This discharge of justice in courts dealing with family law matters is very much dependent upon the parties complying with their obligations to make full and frank disclosure of their financial circumstances in a prudent and timely manner.  The failure by a party to do so entitles the court to take a “robust” position in respect of the findings regarding a party’s financial circumstances.  Callinan J in the High Court in Chang v Su[8], on a special leave application, commented:

    It does not matter what the principle might be seen to be, a court has to do the best it can.  It does the best it can, having regard to the evidence that is adduced, and if the parties are not frank, then naturally there is going to be a measure of imprecision about any findings that the court can make. 

    [8] [2002] FLC 93 117

11. However, the authorities generally make it clear that where there has been a failure by a party to make full and proper disclosure, then a court can be less cautious and precise than might otherwise be the case when determining orders, and it may be appropriate to err on the side of a generosity to a party disadvantaged by the other party’s failure.

12. I am satisfied that the husband made a superior initial contribution to the property of these parties.  On the evidence before me it seems that their contributions during the marriage were equal.  I note that the husband has made superior financial contributions since separation but that the wife has had the primary care of [X], albeit with the husband contributing child support.  I am satisfied that there should be an adjustment in favour of the husband on account of contributions, and in the usual circumstances, I would suggest that adjustment to be five per cent – ten percent.

13. This is not, however, a “usual matter”.  It is highlighted by what I find to be the wife’s deliberate and obtrusive behaviour with the consequent difficulties of determining the property pool as it currently exists.  Of particular concern are her actions in respect of the superannuation funds, the contents of which would not normally be available to the parties.  I am satisfied that the wife has improperly, unilaterally and probably illegally, moved moneys through these funds to her own advantage, and that a significant amount (approximately $116,000) remains unaccounted.  I am satisfied that she has retained stock, plant and equipment, motor vehicles and chattels.  The evidence before me does not allow findings as to whether these items still exist or, if sold, then to what purpose the proceeds were put. 

14. I consider all of these matters under section 75(2)(o), and conclude that there should be a significant adjustment to the husband accordingly. This is not, however, a matter where justice and equity is accorded the husband, by a simple process of determining the known pool and the contributions and the relevant s.75(2) factors. To do so might cause injustice and certainly disadvantage to him. I am satisfied, therefore, that there should be orders in the terms sought by the husband in his application and affidavit, but amended in his submissions to me at the undefended hearing.

ORDERS DELIVERED

1. Given my findings as to the wife’s attitude and non-participation in these proceedings, I intend to make an order as set out above empowering the Registrar of this court to sign documents to give effect to the orders, and importantly, to execute a withdrawal of caveat lodged by the wife against the husband’s home at [R].  This will of course obligate the husband to prepare the document and provide it to the Registrar, and in all likelihood, will require the husband to meet the relevant fees normally associated with such a withdrawal.

   
   

   The chances, however, of the wife participating and cooperating are minimal and would be inconsistent with her actions thus far.  

2. I am satisfied that orders in the above terms give justice and equity to the unusual factual platform now before me, and to the contributions of the parties and the relevant section 75(2) factors, albeit, I fear (as does the husband) that the wife has retained and/or disposed of assets far in excess of her actual entitlement under Part VII of the Act.

I certify that the preceding fifty-four (54) paragraphs are a true copy of the reasons for judgment of Judge McGuire.

Date:  28 August 2013