Beach and Beach

[2007] FamCA 367

FAMILY COURT OF AUSTRALIA

BEACH & BEACH [2007] FamCA 367

FAMILY LAW - PROPERTY SETTLEMENT

Applicant: MRS BEACH

Respondent: MR BEACH

File number: MLF 2761 of 2003

Date delivered: 19 April 2007

Place Delivered: Melbourne

Judgment of: Carter J

Hearing Date: 19 April 2007

Representation

Counsel For The Applicant: Mr I.F. Mawson

Solicitor For The Applicant: Gillian Coote Family Law

Counsel For The Respondent: In person

Orders

1. That within thirty days of the making of orders the husband do all things and sign all documents to transfer to the wife all of his right, title and interest in the property at D, being the whole of the land more particularly described in Certificate of Title Volume … Folio … , free of encumbrance (“the transfer”).

2. That in the event that the husband fails to transfer the property in accordance with order (1) hereof, or is unable to refinance to enable the property to be transferred free of encumbrance, then “the farming property” known as “[F]” at T in the State of Victoria, being the whole of the land comprised in Certificates of Title Volume … Folio …, Volume … Folio …, Volume … Folio … and Volume … Folio … including the farming equipment and stock owned by the husband be forthwith sold altogether out of Court (“the sale”) upon such terms and conditions (including reserve price) as are agreed, and in default of agreement as to any matter then on terms, conditions and price as determined by such Real Estate Agent as shall be nominated by the President (for the time being) of the Real Estate Institute of Victoria, and the proceeds derived thereon be applied as follows:

   (a)       firstly, to pay all costs and commissions and expenses of sale;

   (b)secondly, to discharge the S Ltd mortgage registered against the property at D, being mortgage … and the mortgage registered against the farming property, namely mortgage … and any other amount owing to S Ltd which is guaranteed by the wife;

   (c)thirdly, solicitors fees incurred by the wife as a result of the default with respect to the transfer;

   (d)fourthly, to Mr S and other creditors as set out in the husband’s Financial Statement;  and

   (e)       fifthly, the balance then remaining to the husband.

3. That pending payment or completion of the sale of the farming property:

   (a)the husband have sole right to occupy the farming property and during such right of occupation, the husband pay all instalments pursuant to the mortgages registered against both the D property and the farming property, and all rates and taxes and like apportionable outgoings with respect to both properties as and when they fall due;

   (b)the wife have sole right to occupy the property at D;

   (c)the parties hold their respective interests in real property upon trust pursuant to these orders;

   (d)neither party encumber any property referred to in these orders without the consent in writing of the other party;  and

   (e)there be general liberty to apply in respect of the sale.

4. That if the husband fails to sign all such necessary documents to comply with par (1) hereof, and/or those required to effect a sale of the farming property as referred to in par (2) hereof, then pursuant to s 106A of the Family Law Act 1975 a Registrar of the Family Court of Australia at Melbourne is hereby appointed to execute all deeds and documents in the name of the husband and do all such acts and things necessary to give validity and operation to all such deeds and documents so as to effect the transfer to the wife of the property at D free of encumbrance.

5. That on or before the date of the transfer the wife do all such acts and things and sign all such documents as may be required to transfer to the husband all of her right, title and interest in R Management Ltd (ACN …), B Pty Ltd (ACN …), S Pty Ltd (ACN …) and G Pty Ltd (ACN …) and any other company, partnership, business or trust in which the husband has held any interest during the period of the marriage between the parties (“the husband’s entities”), and that the husband:

   (a)pay, be solely liable for, and indemnify the wife against any liability of the wife for and/or loss or damage suffered by her in respect of any claim against the wife by any of the creditors of the husband and/or the husband’s entities, including any claims upon the wife in her capacity as a personal guarantor, director and/or shareholder or other office bearer in the husband’s entities;

   (b)procure a release and discharge at his expense in favour of the wife in respect of all guarantees, charges and encumbrances pertaining to any asset to be transferred to the husband pursuant to these orders;

   (c)indemnify the wife in respect of all taxation liabilities of the wife arising from her involvement in the husband’s entities including interest, costs, penalties or fines with respect to any and/or income paid or distributed or deemed to have been paid or distributed to her by the husband’s entities;

   (d)indemnify the wife in respect of any claim against the wife for any repayment of any monies previously paid to her by the husband’s entities.

6. That contemporaneously with the transfer, the husband procure a release and discharge at his expense in favour of the wife in respect of all guarantees and/or overdrafts and/or mortgages and/or other borrowings he has with S Ltd.

7. That the husband transfer to the wife all of his right, title and interest in the wife’s Audi motor vehicle, registered free of encumbrance within thirty days of the making of these orders.

8. That each party be solely responsible for any credit card liability in their name at the date of these orders.

9. That unless otherwise specified in these orders:

   (a)each party be solely entitled to the exclusion of the other to all property (including choses-in-action) in the possession of such party as at the date of these orders the furniture and chattels in the property at D are deemed to be in the possession of the wife and the furniture and contents in the farming property at “[F]” at T are deemed to be in the possession of the husband;

   (b)each party hereby foregoes any claim they may have to any superannuation benefits belonging to or earned by the other, save that the wife will sign such documents as provided to her by the husband to transfer to the husband all of her right, title and interest in the Beach Superannuation Fund (if any);

   (c)all insurance policies remain the sole property of the owner named thereunder;

   (d)each party be solely liable for and indemnify the other against any liability encumbering any assets to which that party is entitled pursuant to these orders;

   (e)any joint tenancy in any real or personal property be otherwise expressly severed.

10. That the orders in pars (1) – (9) lie in the Registry pending further order.

11. That the husband pay all arrears of mortgage due pursuant to the terms of the covenant of the mortgage with S Limited ABN … by 3:00pm on 7 May 2007.

12. No later than 12 noon on 30 April 2007 the husband file and serve:

    (a)       any response by way of a Form 1A;

    (b)any affidavit of evidence-in-chief on which he proposes to rely, including any affidavit of any lay witness;

    (c)       an undertaking as to disclosure

    (d)       an up-to-date Financial Statement by way of Form 13;  and

    (e)       a Certificate of Compliance.

13. In the event that the husband does not comply with pars (11) and/or (12) hereof of the two orders, the orders referred to in pars (1) – (9) be executed.

14. If the husband does comply with both the said orders the wife be at liberty to proceed with her amended Form 1 Application filed 18 January 2007 including pars 9 and 11 thereof or otherwise as she may be advised.

15. That the proceedings be adjourned for mention before me at 9.30am on Tuesday, 8 May 2007.

16. That the husband’s written submissions be marked Exhibit “H1” and remain on the Court file.

17. That the wife’s aide-mémoire be marked as Exhibit “W1” and remain on the Court file.

18. That all questions of costs be reserved.

19. That a transcript be prepared of the proceedings this day to be placed on the Court file.

20. That my Reasons for Judgment be transcribed with a copy to be placed on the Court file and a copy to be made available to the parties and/or their solicitors.

IT IS CERTIFIED

1. That pursuant to r 19.50 of the Family Law Rules 2004 this matter reasonably required the attendance of Counsel.

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLF 2761 of 2003

MRS BEACH

Applicant

and

MR BEACH

Respondent

REASONS FOR JUDGMENT

Introduction

1. This matter was listed for hearing on an undefended basis in circumstances upon which I will expand in due course.  The Application before the Court is that of the wife - as I will refer to her - originally filed 17 April 2003, and amended 18 January 2007.  The husband - as I will refer to him, again for convenience - has never filed a Response, notwithstanding a number of orders requiring him to do so.  Indeed, apart from Notice of Address for Service and a Notice of Ceasing to Act, the only document the husband has ever filed is a handwritten Form 13 Financial Statement which was sworn and filed on 20 December 2006.  The requirement to file that document had also been the subject of a number of earlier orders, all of which were ignored.

2. The husband appears today in person seeking an adjournment.  He wants me to accept that he will soon be ready to prosecute his case.  I have doubts about this.  The matter has some urgency for the wife, not just because of the expense and delays and costs which have been involved but also because the husband has defaulted in the terms of a mortgage to S Ltd.  That mortgage is secured on certain real estate including the home in which the wife and the parties’ three children live.  She is understandably concerned that the home may be sold.  The husband is confident he will be able to satisfy the mortgage arrears by the due date and will be in a position to provide all necessary documentation to enable a full hearing; that is, if I grant an adjournment.  As I have said, I have doubts about this.

3. Over the years a number of Court orders have been made for the husband to file documents.  He has not complied with those orders except as I have noted.  He has not complied with orders requiring him to pay costs.  His ability to secure legal representation and to pay arrears of the mortgage is conditional upon him receiving moneys from sale of cattle, possibly plant and equipment, and from someone or something called M (Mr E) for service on various projects.

4. He has already been given a number of opportunities to prosecute his case, whatever that case may be.  For example, and most recently, on 22 January 2007, Mushin J made orders requiring the husband to file the usual documents to enable the case to proceed to trial by no later than 18 February 2007.  His Honour made an order that if the husband did not comply with any provision of the orders, any application by him be thereupon dismissed for want to prosecution without further application and thereupon the wife's application be set down for trial on an undefended basis, subject to any order of the trial judge as to cross‑examination and the making of submissions.

5. The husband appealed that decision, although as I understand it he did not notify those acting for the wife of this, nor serve any copy of his papers upon them.  In any event the matter came before his Honour, Kay J on what amounted to an application for leave to appeal and his Honour made orders on 16 March 2007 extending time for the husband to file the relevant documents,  which had been  set out in par 1 of Mushin J’s orders, to 23 March 2007.  His application was otherwise dismissed.  He did not comply with that order, so strictly speaking, as I said, the matter comes before the Court on an undefended basis.

6. The husband provided a written submission which I will have marked as an exhibit and which will remain on the Court file.  It was in support of his application for an adjournment and he said in it that he had been unable to obtain legal representation for today.  It is convenient to note here that he had legal representation back in 2003 and at other times from time to time.  He has pointed out that he has a firm of solicitors who are ready to act on his behalf and intends to arrange the services of a member of her Majesty’s Counsel who was not available today but would be available in mid to late May.

7. He points out in his written submissions that after the hearing before Kay J, he immediately sought advice from a barrister friend about a person who would be appropriate to provide legal advice and representation.  One pauses here to wonder why it is not until 2007 in a case which commenced in 2003 that the husband seeks such advice.  I do note that there were proceedings in the Supreme Court, about which I will make reference shortly, which led to the matter going into abeyance, but those matters were well and truly over by 2004.

8. In any event the solicitor that the husband wanted to see and who had been recommended to him was away on leave until 6 April and then there was Easter.  Certain work was done.  Unsurprisingly, the solicitors required some payment which the husband was unable to provide, and accordingly the solicitors involved stopped work on 4 April.  He has now, according to his written submission, received this payment, in fact a little more, and has paid $3000 as requested to the solicitors.  He has explained in his written submissions what he did with the balance of those funds.  He says that he is due to receive a further $22,000 on 1 May.  I will not repeat what he described as to his proposed application of those funds.

9. Mr Mawson on behalf of the wife has sought that the matter proceed undefended and that the husband not be permitted to participate.  I was inclined to agree with him, however by way of one last indulgence for the husband I suggested a way in which the wife could perhaps also be protected.  I pointed out that even if the matter proceeded on an undefended basis, I could of course only make orders if I were satisfied that those orders provided a just and equitable outcome.

10. In those circumstances I suggested that I could hear the matter on an undefended basis, and if satisfied on what would be uncontradicted evidence that the result was just and equitable, I could make orders but effectively stay the operation of those orders.  If the husband paid the mortgage arrears and filed the relevant documents within certain time lines, the matter could proceed to trial; if he did not, the orders could be executed.  This would protect the wife but also give the husband yet another indulgence.  This course of action was agreed to.

11. Accordingly, I heard submissions from Mr Mawson, received an aide-mémoire from him, about which I will also make reference in due course, and retired to consider over the luncheon adjournment the material which had been filed and the matters raised by Mr Mawson.  I should note that I have proceeded only on the basis of the material filed by the wife and with no other participation by the husband for reasons I have already outlined, save for his written submissions and Financial Statement.

12. I have had the benefit of an affidavit sworn and filed by the wife on 18 January 2007, a Financial Statement sworn and filed on the same day, and affidavits of the wife’s solicitor.  I have read all those documents.  The wife and her solicitor have, in part by reconstruction through subpoenaed documents and other documents, set out as fully and as completely as they can all relevant financial information as well as information as to the background to the lives of these parties.

Background

1. The husband was born in December 1957.  The wife was born in April 1957.  They met in about 1976 and commenced a relationship in or about 1979.  The wife from the end of 1979 commenced a relationship with the family farm of the husband which is F at T, near A.  Both the parties worked in various ways on that property.  They married in November 1984.  Their first child, a son, was born in September 1987.  The son is now a student at University.  Their second child, a daughter, was born in March 1989.  The daughter is a student at L School.  Their third child, the younger daughter, was born in September 1992.  She is also a student at L School.

2. The wife by agreement ceased paid employment after the son was born but did continue to work on the farm and raise the children.  The husband purchased a property in N in or about 1983 and that became the parties’ first matrimonial property.  Subsequently they purchased a property at D.  That was in about 1989.  The wife continues to live in that property.  The N property was retained and rented out.

3. The husband established an entity called R Ltd which in turn managed the rural property trust.  He was in 1997 replaced in the trust but he retained his shares in that entity, which in due course became an entity known as or perhaps conveniently called a Trust.  He held various positions after that time but apart from income earned on the farming property had no other regular income.

4. The husband’s mother died in or about 1994 and unfortunately his father subsequently also died.  That was in about June 1999.  In his will the husband's father left the farming property and the stock on it to the husband and the sum of $150,000 to the husband's brother.  The property was worth about $600,000 at that stage and the cattle were worth about $300,000.

5. The husband's brother challenged the will in the Supreme Court.  The case eventually ran for some two weeks in 2001.  The husband's brother was successful in that he was awarded an additional $50,000 and obtained an order for costs.  That judgment was appealed.  The parties separated in or about 2001.  Subsequently they reconciled.  They had what the wife described as an off and on again relationship from about December 2001 until January 2003.  I note here that the wife resumed part-time work in or about November 2000 and she continues to work to this day.

6. The property at N was sold in June 2002 in order to reduce debt.  There were orders made in this Court on 7 May 2003 which provided a partial property distribution for both parties.  Those orders in effect set out how the proceeds of sale of the A Trust shares were to be arranged.  In 2004 the appeal was dismissed by the Supreme Court and the parties needed to obtain further funds to pay out the husband’s brother.  In late 2004 the husband purchased an interest in an entity known as O Company.  In September 2006 proceedings were issued by the husband in the Federal Court with respect to that entity which were compromised in or about October 2006.

7. The husband told me during the course of these proceedings that he received an amount of about 220-odd thousand dollars in about January of this year.  In April 2006 S Ltd issued a default notice with respect to the mortgage.  They require payment of arrears of $38,358.95 by 3 pm on 7 May 2007.  If they do not receive those moneys, then the totality of loans made to the husband will become immediately repayable in full.  It was noted in the notice of default that the mortgagee might then, without further notice, exercise any or all of its rights, powers and remedies conferred upon it as a mortgagee for recovery of the total debt.

8. That total debt was noted as being just over $1.44 million.  There is interest accruing on that debt on a daily basis.  The wife became aware of this when she received a letter dated 5 April 2007 and noted as being sent by registered post and, as I understand it, enclosing a copy of the letter sent to the husband at the farm at his RMB number.  The husband claims not to have received that letter but to be aware of the fact that the mortgage is in arrears.

Legal Principles

1. Even though this case is for present purposes being conducted on an undefended basis, I must of course deal with the matters required to be dealt with under the legislation. Section 79(4) of the Family Law Act requires what it described as a four-step exercise.  Firstly it is necessary to identify the property of the parties, their assets, liabilities and financial resources.  Secondly it is necessary to evaluate the parties’ contributions, whether they are financial or non-financial, direct or indirect, including contributions to the welfare of the family in the capacity of homemaker or parent.  Thirdly it is necessary to evaluate the matters referred to in s 72(2).  Finally it is obligatory to determine whether the result is just and equitable, noting that it is the real impact in money terms which is actually the crucial issue.

2. Section 79(4)(d) requires the Court to take into account the effect of any proposed order upon either party's earning capacity. Subsection (f) requires the Court to take into account any other order made under the Act which affects a party to the marriage or a child of the marriage. Subsection (g) requires the Court to take into account any child support under the Child Support Assessment Act 1989 that a party to a marriage has provided, is to provide or might be liable to provide for a child of the marriage.

3. Pursuant to the Rules and the consistent authority of this Court, it is obligatory for parties to make full disclosure.  The Full Court of this Court extensively discussed the task of a trial judge in a property case where that judge was unable to ascertain the extent of the pool of assets due to a lack of full and frank disclosure in Chang v Su (2002) FLC ¶ 93-117, and in particular on this point I incorporate pars 67 to 70 of Chang v Su.

   “67.     The law to be applied and the approach that may be adopted in cases where, through the lack of a full and frank disclosure, the Court is unable to fully ascertain the extent of a party's wealth, is well settled (see Stein v Stein (1986) FLC 91-779; 11 Fam LR 353; Mezzacappa v Mezzacappa (1987) FLC 91-853; 11 Fam LR 957; Black and Kellner (1992) FLC 92-287; 15 Fam LR 343 and Weir v Weir (1993) FLC 92-338; 16 Fam LR 154).

   68.      In Black and Kellner (supra) the appellant had submitted that, absent findings as to the extent of his wealth, the order made by the trial Judge was plainly unjust.  The key finding of the trial Judge was:

   ‘...the failure on the part of the [husband] to disclose his financial position to the court and his attempts to conceal this matter from the court, which has left the court in the position of not knowing what the [husband’s] financial position is, except that he deliberately underestimated it.’

   69.      Chief Justice Nicholson (with whom Ellis and Cohen JJ agreed), said in dismissing the appeal:

   ‘As senior counsel for the wife pointed out, the first step in proceedings for a property settlement is for the court to ascertain the wealth of the parties and in this regard it is of interest to note the remarks of the Full Court in the case of Giunti and Giunti (1986) FLC 91-759, particularly at 75,555 where the court commented:

   “It is obviously desirable as a general principle that the court should first of all identify the pool of assets available and evaluate it. If each party complies with his or her obligation to make a full and substantive disclosure of their financial affairs- see Briese and Briese; (1986) FLC 91-713, affirmed by the Full Court in Oriolo v Oriolo  (1985) FLC 91-653, there is no problem, although there may be disputes as to valuation.

   However if, as here, one party fails to fulfil that obligation, is it open to that party then to rely on the absence of satisfactory evidence to prevent the making of an order against him or her which otherwise justice and equity would require? It would be simple, if that were the case, to evade the jurisdiction of this court, not by outright refusal which would attract sanctions but by obfuscation and evasion.”

   The Full Court in Oriolo and Oriolo, supra, referred with approval to the remarks of Smithers J in Briese and Briese, and it is perhaps worth reiterating a portion of his Honour's statement at 75,181 where he said, after referring to the decision of the House of Lords in Livesey v Jenkins (1985) All ER 106:

   “... I believe that the conclusion of the House of Lords in the case of Livesey v Jenkins… is apposite, namely that in financial proceedings between spouses each party must make a full and frank disclosure of all material facts. In that case it was made clear that full and frank disclosure was required as a matter of principle in the light of the fact that it was the duty of the court, taking into account a number of designated criteria, to make a decision which basically involved the exercise of discretion. This is quite different from common law litigation between strangers, in which such a general duty does not exist, and obligations would only exist in so far as statute or court rules required.

   In my view it is fundamental to the whole operation of the Family Law Act in financial cases that there is an obligation of the nature to which I have referred.”

   Regard also may be had to the decisions of this court in Stein and Stein (1986) FLC 91-779 at 75,676 and Mezzacappa and Mezzacappa (1987) FLC 91-853.

   In the present case a similar situation arose. The assets of the parties could not be ascertained in full because of obvious non-disclosures.

   It is apparent that if his income was more substantial than he claimed, then this would be reflected in the value of his practice and in this regard it is perhaps of interest to note that the wife's former husband's practice of a similar nature, was capable of being sold for a figure in 1973 terms which would if reflected in 1991 terms, represent a very substantial asset indeed. Finally, another part of a judge's obligation in cases of this nature in considering s 75(2) factors is to consider the respective incomes of the parties. Again, through the behaviour of the husband, this was something which the learned trial judge could not do.

   It follows from what I have said that I do not believe that his Honour's judgment can be attacked upon the basis relied upon by the husband.’

   70.      In Weir v Weir (1993) FLC 92-338;16 Fam LR 154 the Full Court (Nicholson CJ, Strauss and Nygh JJ) dealt with an appeal against the refusal by the trial Judge to make orders in respect of unascertained property because he could not quantify it. The Court said at 79-593:

   ‘This Court has pointed out in a line of cases leading up to the recent decision of the Full Court in Black and Kellner (1992) FLC 92-287, that it is the duty of a party involved in property proceedings in this jurisdiction to make a full disclosure of their financial affairs. See also Giunti and Giunti (1986) FLC 91-759 , and Mezzacappa and Mezzacappa (1987) FLC 91-853 . It is clear enough from his Honour's findings in the present case that the husband had not done so and had in fact pocketed the proceeds of a substantial number of cash sales. It is obvious that in most cases of this nature it is difficult enough for the other party to establish that fact let alone establish the quantum of what has been taken.

   It seems to us that once it has been established that there has been a deliberate non-disclosure, which follows from his Honour's findings in this case, then the Court should not be unduly cautious about making findings in favour of the innocent party. To do otherwise might be thought to provide a charter for fraud in proceedings of this nature.

   It is true that in the case of Monte and Monte (1986) FLC 91-757, the Full Court said that to found jurisdiction under s. 79 in relation to property other than that which had been identified, the trial judge was obliged to make a finding as to the existence and value of other undisclosed property, even though the unsatisfactory nature of the evidence made it necessary to express that finding in the most general terms both as to identify and value.

   We confess to some difficulty with this proposition. We should have thought that the Court's jurisdiction to make an order going beyond the identified property arises once there is sufficient evidence to support a finding that the party has not made a full disclosure of his or her assets.

   The difficulty then arises as to what order should be made. However, we are troubled by the proposition which seems to arise from Monte and Monte  that if a party is either cunning enough or vague enough to cover his or her tracks sufficiently to prevent a Court making a finding as to the amount that has not been disclosed, then the other party fails. We do not believe this to be the law and in so far as the decision in Monte and Monte supports such a proposition, we do not believe that it should be followed.’ ”

4. Not long afterwards the Full Court set out a summary of those cases in Kannis, appeal numbers WA6L of 2000 and WA9 of 2002, in a judgment given 24 December 2002.  Kannis is in fact reported at (2003) FLC ¶ 93-135 but only as to the issue of a next friend and not as to disclosure. In Kannis, and having set out a summary of cases referred to in Chang v Su, the Full Court went on to say as follows:

   “49.     On 5 November 2002 the High Court dismissed an application by Mr Chang seeking special leave to appeal from the Full Court’s decision.  In the course of argument Callinan J observed:

   ‘It does not matter what the principle might be said 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.’

   50.      [Counsel] submitted that the cases discussed above were authority for the proposition that where there was a finding of deliberate non-disclosure the court could act more robustly in making findings adverse to the party who had actively mislead it.  We do not see that the principle should be so confined.

   51.      Whether the non-disclosure is wilful or accidental, is a result of misfeasance, or malfeasance or nonfeasance, is beside the point.  The duty to disclose is absolute.  Where the court is satisfied the whole truth has not come out it might readily conclude the asset pool is greater than demonstrated.  In those circumstances it may be appropriate to err on the side of generosity to the party who might be otherwise be seen to be disadvantaged by the lack of complete candour.  This is the course the trial judge adopted.  It was a course clearly open to him and one that does not merit appellate interference.”

Discussion

1. In her trial affidavit the wife has set out comprehensively the parties' personal background and circumstances commencing at par 2 and going on to par 61 of that affidavit.  Amongst other things she has set out the details relating to their relationship, their marriage, the birth of their children, their involvement with the husband's family farm.  She described the acquisition of the N property and what became the eventual family home at D.  That is a very brief and only partial extract of the matters discussed there.

2. In pars 62 to 127 the wife deals again comprehensively with the parties’ financial affairs since separation.  I accept, as she said in par 64, that the balance of her affidavit provided as much financial information as she could from her own knowledge, information and belief.  Other information had been obtained by her solicitors pursuant to subpoena and that was accordingly listed.  I refer again to the affidavits that the wife’s solicitor also filed.

3. In pars 128 to 152 the wife set out the history of the proceedings in this Court.  It makes for very sorry reading.  Commencing at par 153 and under the heading of Current Assets and Liabilities, the wife again set out what she could about the parties’ assets and liabilities.  I note in particular the orders which were made by this Court on 7 May 2003 and the wife's description of the disposition of the funds that she received.  That explanation commences at par 155.

4. The wife’s material to which I have referred, her solicitors' affidavits and her Financial Statement, provides the basis for her counsel's submission that well over $2 million has not been explained or properly accounted for.  That does not take into account any “add-backs”.  The husband should be and is given credit for his inheritance which was indeed substantial.  His father died in 1999 so the bequest was relatively recent.  But I also take into account the wife’s contribution to and involvement with the farm as detailed in her affidavit.

5. It must also be recalled that there were proceedings in the Supreme Court brought by the husband’s brother in which he successfully challenged the Will.  Both the husband and the wife were involved in those proceedings.  The Supreme Court judgment was appealed unsuccessfully and the parties had to refinance in order to pay the husband’s brother.  In any event, as Mr Mawson submitted, that pales into insignificance when compared with the funds which have been unaccounted for.  In the post-separation period I need only look to the summary provided by the wife commencing at par 155 of her affidavit to be comfortably satisfied that her contribution to the welfare of the family has greatly exceeded that of the husband.

6. The husband in his Financial Statement filed 20 December 2006 described that his average weekly income was $200.  That arose from social security benefits of some sort.  He had a total personal expenditure, he said, of over $12,000 per week and he set out other information as to property and various liabilities.  As it happens, he has other interests and activities which appear to earn income.  I am not fully aware of them, save as I have noted earlier when I spoke of “[M].”

7. The wife is a personal assistant and earns about $1100 per week before tax.  Her Financial Statement was filed, as I have said, on 18 January 2007.  All three children live with her.  Two of them are under the age of 18.  Each of those children have extremely modest amounts of income.  The younger daughter for example receives about $3 per week, the elder daughter about $10 and the son about $20.  She of course has the benefit of living in the matrimonial home and she also has the privilege of paying for the school fees for the schools and generally supporting them.

8. I actually know no more than what I have already said about the husband’s financial circumstances, save what one can glean from his Financial Statement and the information provided by the wife in her affidavit.

9. Mr Mawson provided an aide-mémoire to the Court which will remain on the Court file.  It set out, doing the best that could be done, information relating to the assets and liabilities of these parties.  One modest alteration needed to be made, and that is that the payment to the husband from O Company was not $240,000 but was around the figure of $220,000, but that on an overall basis does not matter a great deal.

10. The valuations are derived from what I will call proper valuations in part and other information which can be gleaned from the material, and in particular, as far as S Ltd is concerned, reference is made to what the husband said in his Financial Statement.  That is on p 2 of the aide-mémoire.  The figures as noted by Mr Mawson do not take into account superannuation.  The wife has about $25,500 worth of superannuation.  It is unknown what the husband has.  Certainly it is my recollection he did not disclose anything in his Financial Statement, and indeed he may not have any.

11. The orders sought by the wife would on Mr Mawson’s calculations provide her with assets, including assets which she already holds, which would total $1,166,305.  That is from an estimated net asset pool of $2,777,624.  That equates to 58.5 per cent of the estimated net assets.  That does not take into account any add-backs by way of notional assets.  Given the contributions that I have discussed, throughout the marriage and post-separation, and the wife's additional responsibility for caring for the children, a combination of contributions and s 75(2) matters would lead me to believe that that would produce a just and equitable result.

12. If pressed I would say that the contributions alone would be at least equal, possibly a little higher to take into account some quite extensive payments made by the wife both for the children and indeed to the husband pursuant to the orders which were made in 2003 in this Court, and also taking into account the s 75(2) matters, I would be content to think that the proper outcome would be around 60 per cent, perhaps more.  The unaccounted-for funds of course are huge and that obviously influences the outcome as well.  For all those reasons I will make orders as I foreshadowed earlier.

I certify that the preceding thirty-six (36) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Carter

Associate:     

Date:              30 April 2007

IT IS NOTED that this judgment for all publication and reporting purposes be referred to as BEACH & BEACH