BESTON & WESTLAW

FAMILY COURT OF AUSTRALIA

BESTON & WESTLAW

[2015] FamCA 590

FAMILY LAW – PARENTING – The Mother have sole parental responsibility FAMILY LAW – PROPERTY SETTLEMENT –

Family Law Act 1975 (Cth)
Child Support (Assessment) Act 1989

Stanford and Stanford (2012) 247 CLR 108
Mallet v Mallet (1984) 156 CLR 605
Bevan & Bevan [2013] FamCAFC 116
Norbis v Norbis (1986) 161 CLR 513
Steinbrenner & Steinbrenner [2008] FamCAFC 193

APPLICANT:

Ms Beston

RESPONDENT:

Mr Westlaw

FILE NUMBER:

BRC

562

2011

DATE DELIVERED:

24 July 2015

PLACE DELIVERED:

Brisbane

PLACE HEARD:

Brisbane

JUDGMENT OF:

Hogan J

HEARING DATE:

25, 26, 27 & 28 March 2013
10 March 2014
14, 15 & 16 April 2014

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr Looney, Queen’s Counsel on 25, 26, 27 & 28 March 2013

SOLICITORS FOR THE APPLICANT:

Cassandra Pullos Lawyers

THE APPLICANT:

In person on 10 March 2014 and 14, 15 & 16 April 2014

COUNSEL FOR THE RESPONDENT:

Mr Wilson, Queen’s Counsel and Dr Brasch on 25, 26, 27, 28 March 2013

SOLICITORS FOR THE RESPONDENT:

Harrington Family Lawyers

THE RESPONDENT:

In person on 10 March 2014 and 14, 15 & 16 April 2014

Orders

IT IS ORDERED BY CONSENT BY WAY OF FINAL PARENTING ORDER THAT

All previous parenting Orders be discharged.
The children C born … 1999 and D born … 2003 live with the mother.
The Mother have sole parental responsibility for all major long term issues relating to the children, however the Mother shall, prior to making the sole ultimate decision about any such issue:
(a)use her best endeavours to advise the Father in writing of the decision intended to be made;
(b)seek the Father’s written response within three (3) days in relation thereto:
(i)consider, by reference to the best interests of the children, any such response prior to making any such decision; and
(ii)advise the Father in writing as soon as reasonably practicable of her ultimate decision.
The Mother keep the Father informed in writing by way of email to an email address to be nominated by the Father, about decisions made in the exercise of her sole parental responsibility and matters relating to the children generally.
The Mother have sole parental responsibility for the day to day care, welfare and development of the children when they are living with her.

IT IS ORDERED BY WAY OF FINAL PARENTING ORDER THAT

The Father is at liberty to send cards, letters and/or gifts to the children by sending the same to either:
(a)the educational facility at which the children attend, if such facility is willing and/or able to facilitate such communication; or
(b) the address at which the children are living.
In order to facilitate the Father sending cards, letters and/or gifts to the children, the Mother shall keep him informed at all times of the educational facilities at which the children attend and the address at which they are living by communication in writing directed to an email address nominated by him.

IT IS ORDERED BY WAY OF FINAL PROPERTY ORDER THAT

All previous orders save for Clause (10) of the Order made 23 September 2011 are discharged.
Within seven (7) days of the date of this Order, the Applicant sign all documents and do all things necessary to remove the caveats she has lodged over the K Street properties (more particularly described as No 1, Survey Plan … County of M Parish of N and No 2, Registered Plan …, County of M, Parish of N) and advise National Australia Bank in writing that she consents to the use of the facilities conducted by Q Pty Ltd, S Pty Ltd and the Westlaw Family Trust with the National Australia Bank and in the event that this does not occur, the operation of Clause (28) of the Order shall be stayed until there is compliance with this Clause.
Within 45 days of the date of this Order, the Applicant vacate the property situated at U Street, H Town and, thereafter, an injunction shall issue restraining her from attending at that property.
The Respondent be appointed as the trustee for sale of the real property located at U Street, H Town, more particularly known as Lot … on … Parish of DD, County EE (the H Town property).
In his capacity as trustee for sale of the H Town property, the Respondent shall:
(a)cause reasonable works to be undertaken, within 90 days of taking possession, to rectify those defects identified by X Pty Ltd in the valuation report dated 28 March 2014, which the real estate agent appointed to act in the sale of the property reasonably recommends as necessary to prepare the property for sale; and
(b)provide to the Applicant a copy of any invoice relating to the performance of any rectification work carried out on the H Town property to prepare it for sale; and thereafter,
(c)obtain an updated valuation report from X Pty Ltd within 28 days after the completion of the remedial works referred to above; and
(d)provide the Applicant with a copy of the updated valuation report from X Pty Ltd within seven (7) days of its receipt.
Within 30 days of obtaining the updated valuation report from X Pty Ltd, in accordance with Clause (12)(c) the Respondent, in his capacity as trustee for sale of the H Town property, shall do all acts and things and sign all documents necessary to list the property for sale by private treaty on the following terms:
(a)at a list price no less than the valuation provided in the updated valuation report obtained from X Pty Ltd in accordance with Clause (12)(c) above; and
(b)the sale price of the property shall be an amount determined by the Respondent on the advice of the listing agent and any offer to buy the property for an amount that is at least 95 per cent of the list price shall be accepted as the sale price; and
(c)the property shall remain listed for sale by private treaty for a period of six (6) months.
In his capacity as trustee for sale of the H Town property, the Respondent shall do all acts and things and sign all documents necessary to affect the sale and transfer of the property, with such actions to include but not be limited to:
(a)the engagement and instruction of a single conveyancing solicitor to act on behalf of the registered property owner to affect the sale; and
(b)the signing of any transfer documentation no later than 14 days prior to the settlement date for such sale; and
(c)doing any other thing as may reasonably be requested or recommended by the appointed conveyancing solicitor as necessary to facilitate the sale.
Within seven (7) days of engaging a single conveyancing solicitor for the purpose of the sale of the H Town property the Respondent will provide the Applicant with contact details for the same.
This order is authority for the conveyancing solicitor provide to the Applicant with a copy of any contract for sale for the H Town property and to provide her with a copy of any settlement document following settlement of the sale.
The Respondent, in his capacity as trustee for sale for the H Town property, shall do all such things as may be necessary to cause the proceeds of sale of the property to be paid in the following manner and priority as soon as practicable after settlement of the sale:
(a)payment of any commission and other expenses payable to the real estate agent on the sale of the property; and
(b)payment of any legal costs and outlays relating to the sale of the property; and
(c)payment to the National Australia Bank:
(i)first: of the amount necessary to extinguish the home loan relating to the H Town property in the Applicant’s name; and
(ii)then: subject to the operation of Clause (20), of any amount then remaining to reduce the amount owing under the home loan portfolio.
(d)reimbursement to him for any expenses relating to the sale of the property pursuant to this Order which have been paid by him personally or in his capacity as trustee for sale pursuant to Clause (12)(a).
In the event the H Town property is not sold by private treaty within six (6) months from the date of listing, the parties have liberty to apply in relation to the form of further “machinery orders” to facilitate its sale.
If requested by the Respondent in his capacity as trustee for sale of the H Town property and it is, for some reason, necessary that she do so, the Applicant shall sign all documents and do all things as may be necessary to facilitate the sale of the H Town property.
Within 14 days of the date of this order, the Respondent forthwith take all steps as may be available to him to:
(a)attempt to secure National Australia Bank’s consent to permit the balance of the sale proceeds from the H Town property after payment out of the home loan to be applied other than in reduction of the amount owing pursuant to the portfolio loan facility;
(b)attempt to refinance the amount owing to National Australia Bank pursuant to the National Australia Bank portfolio loan facility; and
(c)attempt to refinance any amount owing pursuant to the National Australia Bank portfolio loan, including securing such balance utilising the K Street properties, so that he does all that he can to facilitate the release of the Applicant from the guarantee she has provided for the National Australia Bank portfolio loan.
In the event the National Australia Bank refuses to release the Applicant from her guarantee, the Respondent shall indemnify her and keep her indemnified in relation to any such liability incurred at any time as a consequence of the guarantee she has provided to National Australia Bank in relation to the portfolio loan facility.
The Respondent forthwith do all things necessary to transfer ownership of the German motor vehicle currently in the Applicant’s possession is transferred to her, subject to her refinancing or assessing any liability currently outstanding in relation to it.
In the event the Applicant is unable or unwilling to refinance any liability secured over or in relation to the German motor vehicle in her possession, she shall surrender this vehicle to the Respondent by leaving it at the H Town property.
Within 30 days of the settlement of the sale of the H Town property, the Respondent shall cause the sum of $119,597.00 to be deposited into a bank account nominated by the Applicant in writing.
Save as is otherwise specifically provided for in this Order, the Applicant retain for her own use and benefit absolutely and free of any claim by the Respondent any property of whatsoever nature in which she has any interest.
Save as is otherwise specifically provided for in this Order, the Respondent retain for his own use and benefit absolutely and free of any claim by the Applicant any property of whatsoever nature in which he has any interest.
Each party do all things and sign all documents necessary to remove the Applicant as a member of the Westlaw Superannuation Fund and in the event either party refuses to sign those documents necessary to put this Clause into effect, or any other documents necessary to give effect to these Orders, then pursuant to s 106A of the Family Law Act 1975 a Registrar of the Family Court of Australia at Brisbane is hereby appointed to execute all deeds or instruments in the name of the party who fails, refuses or neglects to sign all necessary documents and do all acts and things necessary to give validity and operation to the said Order.
Within 30 days of the date of this Order, the Respondent cause all arrears of maintenance and child support in the amount of $34,520.00 to be paid to the Applicant by deposit into a bank account nominated by her in writing, and in the event that this does not occur, the operation of Clauses (10)-(16) shall be stayed.
The Respondent pay to the Applicant, by way of spousal maintenance:
(a)an amount for bond and rent, with such amount to be fixed at $5,560.00 and to be deposited into a bank account provided by the Applicant within 21 days of the date of this order and to be repayable by the Applicant to the Respondent in the event of non-compliance by her with the terms of Clause (10); and, thereafter
(b)the sum of $1,000.00 per week for a period of one (1) year from the date on which the Applicant vacates the H Town property, with:
(i)the first payment to be made within 24 hours of the Applicant vacating the H Town property; and thereafter,
(ii)each remaining payment to be made each Friday, excluding the week within which the payment pursuant to Clause (29)(a) above occurs.
The Respondent’s obligation to pay the Applicant the maintenance prescribed by Clause (29)(b) of this Order shall be stayed if the Applicant fails to comply with Clause (10) of this Order.
From the date of the lodgement by any party of an application for child support with the Department of Human Services, the annual rate of child support payable by the Respondent in respect of the children C, born … 1999, and D, born … 2003, be varied as from the date of this Order such that the annual rate payable by the Respondent shall be calculated using his child support income amount.
Upon the Department of Human Services issuing a child support assessment calculated using the Respondent’s child support income amount, the Respondent’s obligation to pay child support in the amount provided for by Clause (10) of the Order made 23 September 2011 shall cease.
All extant applications are otherwise dismissed.

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

FAMILY COURT OF AUSTRALIA AT BRISBANE

FILE NUMBER: BRC 562 of 2011

Ms Beston

Applicant

And

Mr Westlaw

Respondent

REASONS FOR JUDGMENT

I commence these Reasons with a sincere apology to the parties for the delay in finalising this matter. I have, of course, revisited and reread my notes, the affidavit material, the exhibits, the expert reports prepared by persons with professional expertise for the Court’s assistance and the contents of the parties’ respective summaries of argument, however described. I have also had regard to the transcript of the proceedings.
The Applicant was born in 1964 and is 51 years of age. The Respondent was born in 1955 and is nearly 60 years of age.
The parties disagree about when they commenced their relationship and when cohabitation commenced. I am persuaded that it is more likely than not that the parties commenced cohabitation in about July 1998. Given that they agree they separated finally on 16 July 2010, the duration of their cohabitation was about 12 years. They had a period of separation in 2001 and separated under the one roof for a number of months in 2006/2007, before reconciling in 2007.
There are two children of the relationship:
a)C, born in 1999; and
b)D (known as ‘D’), born in 2003.
The children have lived with the Applicant in the former joint home at U Street, H Town (“the H Town property”) since separation. Attempts to encourage them in a continuing relationship with the Respondent have been unsuccessful.[1]
[1]See: Order made 5 April 2013 and Reasons for Judgment delivered that day in respect of the Respondent’s application for interim parenting orders given that the trial was adjourned part-heard after taking place on 25-28 March 2013.
Save for the opportunity to send gifts to the children via their school, the Respondent ultimately decided not to seek parenting orders in relation to the children. The Applicant said she had no issue with him sending cards and/or gifts to the children via this means but had not enquired of the school whether it would be willing and/or able to facilitate this. It is in the children’s best interests that they are able to receive this type of communication from their father because this will enable them to remain aware of his love and care for them and, hopefully, provide an avenue by which, at some later and indeterminate time, they may themselves seek him, and a relationship with him, out. Orders will therefore be made to deal with both scenarios: namely, that in which the school is willing and/or able to facilitate this communication and that in which it is not. If the school is unwilling and/or unable to assist in passing letters and gifts from the father to the children, an order will permit him to send these directly to the children at their residence. Whilst the Applicant sought this occur via a post office box I am not persuaded this is necessary. Whilst the Respondent sought the opportunity to explain his decision to the children in the presence of a counsellor with whom they have had some previous engagement, their apparent resistance to interacting with him persuades me that it is unlikely to be possible to have them participate in such a meeting unless it is initiated by them - for this reason, I decline to make an order in such terms.
Previous orders have required the Respondent to pay spousal maintenance to the Applicant and to meet certain costs associated with her continued residence in the H Town property. Previous orders also provided for her financial support upon the then ordered sale of that property.
For example, on 23 September 2011 Forrest J made orders which included that the Respondent pay or cause to be paid, as and when they fall due:
a)principal and interest payments to National Australia Bank in relation to the mortgage for the H Town property; and
b)rates, body corporate fees and charges, with arrears/costs associated with the arrears to be paid within 28 days; and
c)the lease payments, registration and insurance in relation to a German motor vehicle in the Applicant’s possession; and
d)the minimum monthly credit card payments in relation to two National Australia Bank VISA credit cards held by the Applicant at separation; and
e)a minimum monthly negotiated payment to the Australian Taxation Office.
In addition, the Respondent was restrained from paying for private health insurance unless this also covered the Applicant and the children. He was required to pay $500.00 per week maintenance to the Applicant with the first payment to be made within seven days of the order. His Honour also varied the annual child support payable by the Respondent to $37,142.00. He required the Respondent to pay the costs of the real property and business valuations at first instance with the Applicant’s share (if any) to be assessed by the trial judge.
On 16 November 2012, the Respondent’s obligation to pay maintenance to the Applicant was varied to the amount of $300.00 per week.[2] Additionally, he was ordered to pay her rent up to an amount of $3,856.67 per month by way of interim maintenance on the settlement of the sale of the H Town property. The order made that day included a dollar for dollar order, that the Respondent pay nominated funds to Mr V (the single expert appointed to value the Respondent’s business) and that the H Town and K Street properties be sold by a trustee for sale.
[2] With this payment to commence on 9 November 2012.
On 18 December 2012, the parties agreed to vary this order. The terms agreed that day required the Respondent to pay $28,700.00 into trust (to be used to pay the arrears of rates and body corporate fees in relation to the H Town property, the balance of funds owing by the Applicant on two credit cards and toward any arrears of child support). Additional money was to be paid by the Respondent to the H Town body corporate in relation to outstanding fees.
There is no dispute between the parties that the Respondent has not fully complied with the terms of the various operative orders on occasions. There is no dispute that, as a consequence of his non-compliance, he is in arrears in relation to both maintenance and child support payments required of him. There is a dispute, however, about the quantum of these arrears and about whether the Respondent should be relieved of the obligation to pay them.

Property

The parties’ voluntary separation some years ago has meant that they no longer enjoy the common use of property and superannuation in which their existing legal and equitable interests were acquired prior to and during their cohabitation. Such separation has also brought to an end any express or implicit assumption that the existing arrangements of their property interests are appropriate and any assumption that any adjustment to those interests could be effected consensually as needed or desired.[3]
[3] Stanford and Stanford (2012) 247 CLR 108, [42].
In advancing their respective positions, both parties assert that, having regard to their existing legal interests in property, it is just and equitable that a property settlement order is made.[4] I accept, as they contend, that in the circumstances, it is just and equitable within the meaning of s 90SM(3) of the Family Law Act 1975 (Cth) (“the Act”) that, pursuant to s 90SM(1) of the Act, an appropriate order is made.[5]
[4] Stanford v Stanford [2012] HCA 52 at par 37.
[5] Ibid at [42].
In arriving at this conclusion, I accept that I must not proceed on the basis of any assumption that the parties’ rights to or interest in the property are or should be different from those which now exist[6], nor with an assumption that one or other party has the right to have the property of the parties divided between them or has the right to an interest in property which is fixed by reference to the various matters set out in s 90SM(4) of the Act. I also accept that the ‘just and equitable’ inquiry required by s 90SM(3) of the Act and those inquiries required by s 90SM(4) of the Act are separate and are not to be merged.[7]
[6] Stanford v Stanford [2012] HCA 52 at par 39.
[7] Stanford v Stanford [2012] HCA 52 at par 51
Whilst agreeing that it is just and equitable that orders altering their interests in property are made, the parties are in conflict as to the terms of the orders which are appropriate to reflect properly those matters which, by s 90SM(4) of the Act, must be considered.

The proposals

The Applicant proposes the only orders which would accord justice and equity to the parties are those requiring the sale of all of the property of the parties (utilising the assistance of a trustee for sale), the payment out of certain liabilities (such as those secured over real property, realisation costs and any taxation liabilities arising from the disposition of the assets) and the payment to her of 80 per cent of the funds then remaining. She advances that this is appropriate because she contends the Respondent has not made full disclosure and has failed to comply with previous orders.
To give effect to her proposal, the Applicant submits that the H Town property (in which she lives with the children) should not be sold until the following assets have been sold:
a)commercial premises from which the Respondent’s business operates; and
b)the business itself; and
c)a Sports motor vehicle driven by the Respondent.
In addition to an order pursuant to s 90SM(1) of the Act, the Applicant also seeks ongoing maintenance,[8] a departure from the administrative assessment of child support and that the Respondent pay all arrears of maintenance and child support.
[8] s90SE(1) of the Act
As at March 2013, the Respondent asserted that orders which would see him receive property and superannuation interests with a combined value representing 70 per cent of the total value of the property and superannuation interests of the parties would be just and equitable. He proposed that the Applicant remove the caveats she has registered over the commercial premises (the K Street properties), that the H Town property be sold and the net sale proceeds applied to reduce the National Australia Bank home loan and the portfolio loan facility.
The issue of which real property should be sold first to meet existing liabilities is one about which the parties have been in dispute for a significant period of time. So much can be seen from the fact that, on 16 November 2012, Forrest J ordered, amongst other things, that a trustee for sale be appointed to sell all of the H Town property and the K Street properties.

Assessment of the parties’ credit

It is, I think, necessary to outline the conclusions I have reached about the parties’ respective credit before embarking upon the familiar and well known approach[9] to the determination of property settlement proceedings whether pursuant to s79 or s90SM of the Act. In doing so, I am cognisant of the reality that the Applicant was cross-examined by experienced Senior Counsel, who then appeared for the Respondent, whilst the Respondent was cross-examined by the Applicant (who was, by that time, acting on her own behalf).
[9]See, for example: Pastrikos & Pastrikos (1980) FLC 90-897; Lee Steere & Lee Steere (1985) FLC 91-626; Ferraro & Ferraro (1993) FLC 92-335; Waters & Jurek (1995) FLC 92-635; Clauson and Clauson (1995) FLC 92-595 and Hickey & Hickey (2003) FLC 93-143.
Even taking this into account, I have concluded that I should approach much of the Applicant’s evidence with significant caution. I arrive at this conclusion because her cross-examination revealed not only that, on occasion, she had sworn falsely, but that she was, on occasion, quite prepared to overstate matters adverse to the Respondent and misstate matters and - on a view that is kindest to her – swear to them without sufficient regard to the necessity for accuracy. Additionally, she has been, I think, quite prepared on occasion to act in a deceptive and misleading manner in her interactions with the Respondent about matters pertaining to the children’s time with him.
The following are some of the matters upon which I have relied in arriving at these conclusions:
a)despite swearing that the parties commenced cohabitation in 1993[10], the Applicant accepted during cross-examination that this was incorrect – she accepted that her previous affidavit was wrong and false where it referred to 1993 as the time at which the parties commenced their cohabitation; and
[10]        Paragraph 5, Applicant’s affidavit filed 15 February 2013.
b)in attempting to explain this error, the Applicant said that the reference should have been to the commencement of a “relationship” rather than “cohabitation”: however, when taken to her evidence[11] that the parties had commenced their relationship in about 1991, she then attempted to explain this discrepancy by saying that “in about 1991” meant “in about 1993”; and
[11]        Paragraph 356, Applicant’s affidavit filed 15 February 2013.
c)the Applicant finally accepted that it was false for her to say that the parties commenced their relationship “in about 1991” and accepted that the Respondent was not even in Queensland in that year; and
d)the Applicant had told Dr F, a psychiatrist upon whom the parties attended for interview, that the parties formed a relationship in approximately 1994 and started living together in 1996; and
e)despite telling Dr F that the Respondent had left his (former) wife to move in with her, she accepted, during cross-examination, that the Respondent had not moved from premises he was living in with his then wife to live with her and that he did not move to live with her at all but, rather, she moved to live with him in a property he had bought at H Town; and
f)despite swearing an affidavit in which she asserted that the children were spending time with the father[12], the Applicant finally accepted during her cross-examination that this statement was false because, at the time she swore the affidavit, the children were not spending time with him in the manner she asserted; and
g)in an affidavit in reply[13], the Applicant disavowed the contents of paragraph 201 of her earlier affidavit (sworn 14^th February 2013) in which she had asserted that the father never attended at a parent teacher interview and never attended at a swimming carnival: her evidence, as corrected, accepted that he did, in fact, attend at two meetings between a class teacher, a junior school principal and her in relation to C and that he had, in fact, attended the swimming carnival; and
h)despite knowing about a newspaper article which referred to a fire on 14 February 2008, she had previously asserted[14] (in her affidavit sworn in March 2013) that this fire occurred in 2006/2007; and
i)despite seemingly appreciating that paragraph 276 of her February 2013 affidavit was false, she did nothing to correct this, explaining that it was a ‘cut and paste’ error which was not corrected through her neglect; and
j)during her cross-examination about her evidence[15] about an occasion when the parties were at a restaurant, the Applicant first accepted that the Respondent had not been abusive to her at the restaurant when they were having dinner but, when taken to the content of her own affidavit (which was that ‘during dinner [Mr Westlaw] was abusive to me’) embarked upon an explanation about events alleged to have occurred and/or continued in a ‘pool’ room, saying that ‘the most abuse happened in the pool room’ – a room not even mentioned in the affidavit recounting; and
k)the Applicant was prepared to swear to the accuracy of balances of bank accounts on the last day of each month but then changed her evidence when her lawyers pointed out inaccuracies to her; and
l)despite the fact that the Respondent’s post-separation accommodation occupied the entirety of the fourth floor of a building, the Applicant persisted in describing it as a “penthouse”; and
m)the Applicant confirmed with the Respondent at a meeting facilitated by a third person that the children would spend time with him on Tuesday nights at a time when she had already made arrangements for them to participate in an activity which occurred on Tuesday nights: that is, she confirmed an arrangement about the children’s time with the Respondent in circumstances where she knew it could not (and would not) be carried into effect and she also facilitated the children being party to the same discussion (that is, during the meeting in which the Tuesday night arrangement was discussed, they, too ,knew they would not be spending time with their father on Tuesdays); and
n)the Applicant accepted during her cross-examination that, despite the evidence contained her affidavit to the effect that her liability to the Australian Taxation Office was as a result of the distribution of income to her from the family trust, there had been no distributions of income to her from this source since 1 July 2003 and it was wrong for her to assert that her tax liability for 2006/2007 arose from the same; and
o)the Applicant finally accepted, after focused cross-examination, that her statement at paragraph [109] of her affidavit - that the Respondent holidayed at a named resort in January 2012 - was false.
[12]        Paragraph 9, Applicant’s affidavit filed 15 February 2013.
[13]        Filed 11 March 2013.
[14]        In her March 2013 affidavit.
[15]        Paragraph 340, Applicant’s affidavit filed 15 February 2013.
I may have been less willing to arrive at the conclusions outlined above if, for example, the Applicant had asserted in her sworn material that she did not or could not remember whether the Respondent had done a particular thing (like, for example, attend at a parent teacher interview or swimming carnival): however, the fact that she positively asserted he had not done those particular things in circumstances where she later accepted that he had, in fact, done those very things, erodes my confidence in accepting her evidence.
There is nothing in the Applicant’s cross-examination of the Respondent to suggest that his evidence suffers from the same flaws and, to the extent that it is necessary, where the evidence of the parties is in conflict, I accept and prefer that given by the Respondent to that given by the Applicant.
Such conclusion does not, however, mean that I accept without reservation submissions made by the Respondent about the conclusions I should reach in determining those matters factually in dispute between the parties. Nor does it mean that I am prepared to accept his assertions about the value of property and/or chattels (such as artworks, furniture and effects) in the absence of documentary evidence which establishes the same or about the value to be attributed to his business. Additionally, it does not mean that his clear determination not to comply with a direction to obtain updated valuation evidence for the K Street properties has gone unnoticed.

The property of the parties and related issues

The parties do not dispute their existing legal interests in the property and superannuation interests. Neither party asserted the existence of any equitable interest in other property.
The Q Group
The Respondent is the owner and operator of a business which, by way of broad explanation, is engaged in the delivery of specialised products and services to various industries including hotels, universities, hospitals, government buildings, construction and manufacturing companies. The business involves the design, sale, installation, maintenance repair of these products, the servicing and associated works.
The business is conducted via two entities:
a)Q Pty Ltd[16] - the main trading entity, as described by Mr V, the single expert[17] appointed to value the parties’ interests in various entities which comprise the Q Group; and
b)S Pty Ltd[18] - the service entity for the Group.
[16]         The Respondent is the sole shareholder of this corporate entity.
[17]         See his report dated 21 March 2013.
[18]        The owner of P Pty Ltd, now deregistered.
Q Pty Ltd is engaged in the design, sale and installation of specialise products and provides related services. Its profit for the 2013 financial year was $288,058.00. S Pty Ltd provides engineering and management services to Q Pty Ltd. Its taxable income for the 2013 financial year was $647,486.00.
Regard to the schedule of ongoing works[19] provided by the Respondent to the National Australia Bank establishes that the business continues to attract significant work and continues to have a pipeline of work available to it: for example, work for Lend Lease due to be completed on 30 September 2014 at a quoted cost of $1,438,000.00 had not been invoiced when the matter resumed in March 2014. Similarly work for the FF Pty Ltd (due to complete in October 2014), at a quoted cost of $1,160,000.00 had similarly not been invoiced at that time. Work for GG Pty Ltd due to complete at the end of December 2014, in respect of which a quote of $669,000.00 had been given, was similarly not invoiced as at March 2014. Reference to these significant works alone clearly demonstrates the pipeline of work available to the business.
[19] Exhibit 8.
Given that the business is well established in the business community within which it operates, the most sensible conclusion from the pipeline of work referred to here is that, to the extent available to any business, it is well-established, well thought of and more likely than not to continue successfully to bid for projects such as these.
The business trades as “Q” and operates from premises located at K Street, L Town. This real property is owned by the Respondent as trustee for the Westlaw Family Trust.
I accept that, whilst P Pty Ltd and O Pty Ltd[20] previously operated within the Q Group, any residual business carried out via these entities was absorbed into the Group or taken over by the Respondent’s former business partner after 1 July 2008. I also accept that P Pty Ltd[21] never traded.
[20] Owned by the Westlaw Family Trust.
[21] Owned by the Westlaw Family Trust.
The Respondent, via the Q Group, is an agent for and on behalf of HHA Pty Ltd (HHA)[22], a wholly owned subsidiary of HH Pty Ltd (HH). HH[23] is a worldwide manufacturer and marketer of specialised products.
[22] Which has manufacturing facilities located on the central coast of New SouthWales.
[23] Which has its headquarters in the United States of America.
In April 1993, the Respondent personally entered into Manufacturer’s Agreement with HH. This means he is their sole representative for Queensland and parts of New South Wales.
I accept that the business operates either:
a)as an agent for HHA – for which it receives commission; or
b)by purchasing equipment manufactured by HHA (if the cost of the same is 50 per cent of the value of the contract with a customer because of the total cost of design, supply and installation) and then installing it for a customer pursuant to contractual terms which encompass all of these aspects of work.
I further accept that, because it results in higher margins, most work done by the business occurs via the second of the two options referred to above.
Prior to 2011, the business utilised an International Trade Facility provided by National Australia Bank. In essence, this facility[24] enabled the business to use borrowed funds to purchase equipment overseas from HHA (or HH), transport it to Australia and invoice customers for it before having to repay the funds borrowed for this purpose. However, when the Applicant lodged caveats over the K Street properties in May 2011, the bank ceased the business’ ability to access funding pursuant to the International Trade Facility or other facilities.
[24] Which permitted repayments to be deferred for 180 days.
Pursuant to Order made on 23 September 2011, Mr V was appointed as the single expert for the purpose of valuing the business operated by the Respondent. In about November 2012, the Respondent paid the fees required by Mr V to commence the valuation process. His report is before me.
Whilst the Respondent purported to rely on a report prepared by Mr II in relation to the valuation of the business, Mr II was not the single expert witness appointed to value the same. Rule 15.49(1) of the Family Law Rules 2004 clearly provides that if a single expert witness is appointed to prepare a report and/or give evidence in relation to an issue, a party must not tender a report or adduce evidence from another expert witness on the same issue without the Court’s permission.
Further, Rule 15.49(2) provides that the Court may allow evidence from another expert witness if satisfied that there is a substantial body of opinion contrary to any opinion given by the single expert witness and that the contrary opinion is or may be necessary for determining the issue, that another expert witness knows of issues not known to the expert witness that may be necessary for determining the issue or there is another special reason for adducing evidence from another expert witness. Clearly, dissatisfaction and/or disagreement with the approach and/or conclusions reached by a single expert witness – as is the case here – does not of itself establish any of the relevant criteria.
Ultimately, the Respondent did not press his reliance on the Mr II report in so far as it related to the valuation of the business.
Neither party required Mr V for cross-examination.
The Respondent asserted that there remains a risk that, at some indefinite time in the future, HH/HHA may “take back” the agency granted to him and carry out the work currently undertaken by the business itself (“in house”). Whilst this risk certainly exists, the reality is that he has a long and well established history with HH/HHA and there is no evidence before the Court of any imminent revocation of the existing agency agreement. The business has continued to operate successfully. As a consequence of his good relationship with HH/HHA, he has been able to obtain certain limited indulgences when faced with certain cash flow difficulties – a matter which suggests it is less probable rather than more probable that HH/HHA may make any imminent decision to cancel the existing agency agreement.

I accept that :
a)whilst HHA can sell its product direct to customers without the Respondent’s businesses involvement (and the consequent payment of commission), if his business obtains an order for a HHA product, that product is sold in the name of HHA; and
b)the manufacturer’s agreement it is not transferable from the Respondent to any other person; and
c)HH has the right to terminate the manufacturer’s agreement if the Respondent offered the business the sale; and
d)HH and the Respondent each have the right to terminate the manufacturer’s agreement by giving not less than seven days notice; and
e)if the agreement is terminated, the sole entitlement of an agent (such as the Respondent) vis a vis HH/HHA is the commission payable on the sale of orders obtained before the termination of the agreement – save for this, HHA has no further liability to an agent; and
f)HH will not permit the manufacturer’s agreement itself to be sold, transferred or traded or in any way signed by the Respondent to any other person or entity; and
g)given the nature of the manufacturer’s agreement, the business operated by the Respondent is not capable of sale to any third party; and
h)there is a potential that HHA/HH may “convert” the Respondent’s agency by deciding to undertake the work he does using in-house employees (as has occurred elsewhere) but:
i)HH/HHA is happy with the way the Respondent’s business is going; and
ii)there is no evidence to suggest it has any immediate intention to “reclaim” the area in respect of which the Respondent was appointed as a representative in 1993 (following his previous appointment as a representative for Victoria between 1983 and 1993 – an agreement which was terminated by HH without any payment to him for goodwill); and
iii)there is no evidence to suggest that work available to the business (in the pipeline, as it were) is diminishing in any significant way.
I accept that, as the sole shareholder of the corporate entities in, from or via which the business operates, all of its earnings (after payment of corporate tax) are accessible to the Respondent. I accept, therefore, that the net earnings of the business are the key benefit derived by the Respondent from the business and that these underpin the value of it to him.
I consider that the appropriate approach to ascertaining the value of the business and the Respondent’s interest in it for the purpose of these proceedings is to ascertain its “value to owner”: for this purpose, I accept Mr V’s evidence in this regard.
I therefore accept that, in order to assess the value to the Respondent of the business, it is appropriate to consider its net earnings (after consideration of the commercial remuneration properly payable to the Respondent for work done by him in the business) over the expected life of the business. I accept Mr V’s methodology (as outlined in his report) as applied in calculating the value to the Respondent of the business.
I further accept his calculations of the value of the cash flow that can be generated by the business over the respective timeframes postulated by him. These are, I accept, exclusive of the net assets of the business at the time shown.
I accept Mr V’s evidence as to the three possible scenarios by which it is appropriate to consider the value of the business. On the evidence before me, I consider that Scenario B – which is predicated upon the finding that I have made that HH/HHA will not permit the transfer of the manufacturer’s agreement between it and the Respondent personally to any person other than the Respondent - is the most appropriate scenario by which the value of the business is ascertained.
The Respondent will be 65 years of age in August 2020. Having regard to his evidence in April 2014 about the manner in which he has started to organise his operation and/or management of the business – namely, that his plan is to delegate significant aspects of it so as to enable him to concentrate upon the maintenance and development of good working relationships with customers – I am persuaded that it is more likely than not that he will continue to operate the business for a number of years into the future.
Absent the Respondent’s chronic health issues and his relatively recent heart attack, I may well have been persuaded simply to use the figure calculated by Mr V as appropriate on the basis that the Respondent would continue to operate the business until at least March 2021 (at which time he will be 65 years of age).
However, such a conclusion would not, it seems to me, appropriately reflect the risk that a recurrence of ill health may cause the Respondent to cease to operate the business or the possibility that HH may terminate the manufacturers agreement.
Doing the best that I can, I consider a conclusion that it is more likely than not that the Respondent will continue to operate the business until March 2018 (in which year he shall be 63 years of age) is one which achieves the necessary balance.
Having made these findings, I am persuaded that the appropriate value to attribute to the business is $1,592,357.00 being the total of $757,453.00 (Mr V’s calculation, which I accept, of the value of the shareholdings before an amount referable to the assessment of “value to owner” is arrived at[25]) and $834,904.00 (Mr V’s calculation, which I accept, of the value to owner of the business until March 2018).
[25] But which is inclusive of loans to the Respondent from the business.
K street, L Town
The business operates from premises located at K street, L Town. Number 6 was bought in March 1998 for $425,000.00 and Number 4 was bought in June 2005 for $385,000.00 utilising a fully drawn, interest only National Australia Bank facility.
In February 2011 the wife caused a caveat to be lodged over each of these properties.
In October 2011, X Pty Ltd valued the properties at $1,180,000.00. In late February 2012, the Respondent told National Australia Bank he estimated the value of the properties at $1,514,000. In March 2013, National Australia Bank valued the properties at $1,200,000.00. These properties are security for a $650,000.00 fully drawn advance.[26]
[26]the National Australia Bank market rate facility loan account number 084 – 25589 – 327 – 3507.
Despite an order made 10 March 2014, that the parties ask X Pty Ltd to update their valuation of the real property, the Respondent’s evidence is that he could not afford to pay X Pty Ltd the quoted sum of $4,950.00 for them to undertake this exercise. He additionally considered that quote to be excessive.
In what I consider to be a clear determination not to comply with the terms of the order, the Respondent relied upon a valuation undertaken by Landmark White for National Australia Bank in March 2013 as providing the evidentiary basis for a determination of the value of the K Street properties. Given my conclusions about the financial support available to the Respondent from the business, I am not persuaded that the Respondent did not have the capacity at some stage or by some means of ensuring that an updated valuation of the K Street properties was provided to the Court. I consider it much more likely than not that he simply decided not to spend any further funds on this litigation.
This conclusion, though, does not in my view effect the reality that the best evidence before the Court about the value of the K Street Properties is the $1,200,000 arrived at by National Australia Bank in March 2013. Even if I was persuaded to draw an inference adverse to the Respondent from his deliberate action in failing to obtain an updated value of the K Street properties – namely, that he was concerned they may be valued at more than $1,200,000.00 – there is no evidentiary basis upon which I could rely to determine an appropriate value for these properties.
Further, given what I accept is their necessity to the ongoing operation of the business – the only source of income for the Respondent and the only means by which any maintenance found to be proper to be paid to the Applicant and any child support payments can be paid – it is inappropriate to order the sale of the same simply to attempt to ascertain a more current value.
U Street, H Town: the former joint home
The Applicant is the registered proprietor of this property which was purchased on 15 March 2002 for $910,000.00. The Respondent says he paid the $45,000.00 deposit and arranged a loan from National Australia Bank for between $650,000.00 and $715,000.00 with the balance being met from the sale proceeds of real property at U Street, H Town. He also estimates that the parties spent more than $2,300,000.00 meeting the costs of renovations carried out on the property and the mortgage repayments.
The H Town property is security for the National Australia Bank portfolio loan (in respect of which there is currently $1,500,000.00 owing) and, as at 28 February 2014, the sum of $883,646.98 was also owing in respect of the home loan obtained by the parties to assist with the purchase of the property.
The property was valued by X Pty Ltd on 7 November 2011 (about 16 months after separation) at $2,000,000.00. This valuation report noted that it was only in fair condition, neglected and needed work: a list of matters requiring attention and/or rectification was particularised in that report. At that time, the valuer’s assessment was that, insofar as the marketability of the property was concerned, it was “tough in the present market for unique properties of this nature”.
As at 28 March 2014, X Pty Ltd valued the property at $1,300,000.00. The valuation report[27] records that the property appeared in poor condition: as was done previously, the valuer provided particulars[28] of those matters requiring attention.
[27] Exhibited to the Applicant's April 2014 affidavit.
[28]At page 3 of the Report: which included painting, repair to cracked render, repair water damage and hole in interior wall, chipped tiles, leaking roof, carpet in poor condition, pool and spa green and need cleaning, pontoon is half sunk and deck has dry rot.
This most recent valuation report outlines, in essence, that:
a)prospective buyers want property which does not need significant works; and
b)if a property presents poorly and in need of upgrades or remedial works, it is likely there will be very limited demand for it in the market; and
c)this property has been neglected in recent years and now presents poorly; and
d)this property requires extensive repairs to restore it to its prestige standard, particularly given that it has one of the best view corridors in H Town and is considered to be quite unique due to its position and views; and
e)this property’s presentation has worsened, with consequent significant negative impact on its saleability.
The Westlaw Family Trust (the Trust)
The Respondent is the appointor and trustee of the Westlaw Family Trust. He and his children are included within its primary beneficiaries.
The Respondent, as trustee for the Trust, owns K street, L Town, the real property from which the business operates. The Trust receives rent from the business for its use of the premises and meets expenses, including the interest payments referable to the National Australia Bank facility.
Mr V outlines that, on an adjusted basis, as at 31 December 2012 the Respondent’s beneficiary account in the Trust stood at $113,666.00 whilst the Applicant’s beneficiary account stood at $610.000. Additionally, he noted the Trust owned shares in AA Pty Ltd. As this managed investment scheme has been placed into administration, Mr V accorded these assets a “nil” value. I accept his approach and adopt it.
The Trust made a distribution of $30,585.00 to the Respondent for the 2013 financial year.
The AA Pty Ltd investments
The evidence establishes that both parties invested heavily in the managed investment scheme known as AA Pty Ltd. Whilst this appears to have achieved significant financial returns initially, it was subsequently placed into administration. Whilst each of the parties continues to own certain woodlots previously associated with this managed investment scheme, the prospects of a return from their investment seem forlorn. As noted, I accept Mr V’s approach to value them at “nil”.
Share portfolios other than investments in AA Pty Ltd
In 2013, the Applicant alleged that the Respondent was the owner of various un-particularised equities. At that time, she asserted that the value of the portfolio was “unknown”. There is no evidence to establish that the Respondent owns any other equities.
Furniture and artworks
The Respondent asserts that the Applicant has furniture valued at $450,000.00 in her possession. The Applicant denies this and asserts that the Respondent removed most of this furniture at separation. She allocates a value of $2,000.00 to the furniture which remains in her possession on the basis that much of it is about 25 years old.
There is no independent expert evidence before the Court to establish the value of furniture in the possession of either party. In such a circumstance, I intend to proceed on the basis of an acknowledgement that each party has furniture available to them but not to accord to it any particular value.
The Applicant asserts that the Respondent removed four paintings by Norman Lindsay which she asserts are valued at about $120,000.00. The Respondent denies her assertion and says he does not have possession of these paintings, nor does he own artwork with such a value. Again, there is no independent expert evidence before the Court to establish the value of the paintings alleged to have been removed by the Respondent.
In the circumstances, I am not persuaded that the Applicant has discharged the evidentiary onus of establishing that the Respondent has possession of the paintings she alleges nor that they have the value she ascribes to them.
The self-managed superannuation fund
R Pty Ltd is the trustee for the Westlaw Superannuation Fund. Both the Applicant and Respondent are members of the fund.
As at 30 June 2010, the Respondent’s entitlement in the fund stood at $70,739.00. Additionally, he had $11,945.00 in an AMP superannuation fund. The Applicant’s entitlement to superannuation in the self-managed super fund for the 2010 financial year was $10,115.00.
Reference to the balance sheet of the fund (as at 30 June 2012) reveals that, as at 30 June 2012, the Respondent’s member entitlement was $2,077.00 whilst the Applicant’s member entitlement was ‘Nil’. The wife has a ‘Nil’ balance as at 30 June 2013.
Whilst the Respondent has caused contributions to the fund to be made on his behalf (in amounts of $7,956.00 in each of 2010 and 2011, $17,405.00 in 2012 and $19,900.00 in 2013) these funds have been applied substantially to the purchase of life insurance premiums (at a cost of about $18,000.00 per annum) - the reality, therefore, is that there has been no increase in the value of the Respondent’s entitlement to superannuation within this fund since separation. Additionally, the investment in 290,000 units in AA Pty Ltd (said to have an average cost of $0.86 per unit) was written off completely in the 2013 financial year. The loss as a consequence of this investment is in the vicinity of $250,000.00.
Funds lent by the Respondent to the self-managed superannuation fund
Whilst the Respondent has previously lent about $113,000.00 to the superannuation fund, the extensive losses suffered by the fund as a consequence of its investment in AA Pty Ltd means that there is no realistic prospect the Respondent will receive repayment of these funds.[29]
[29]Additionally, Mr V appears to have included this amount in his calculation of the amount owing by the Respondent to S Pty Ltd.
Other entitlements to superannuation
In her Amended Case Information document filed 25 March 2013, the Applicant asserted that, as at the end of the 2010 financial year, she had an entitlement to superannuation of $10,115.00 and the Respondent had an entitlement to superannuation in an amount of $82,684.00 (being $70,739.00 in the self-managed superannuation fund and $11,945.00 in an entitlement with AMP). However, I intend to approach the matter on the basis that the Respondent’s superannuation is that most recently sworn.
Funds asserted to have been obtained by the Applicant as a result of the sale of shares in 2006/2007
During his cross-examination of the Applicant, Senior Counsel for the Respondent suggested she sold shares in her name such that her 2006 taxation return recorded total capital gains in an amount of $921,584.00 and her 2007 taxation return recorded total capital gains in an amount of $291,664.00. He suggested she had received these proceeds and had failed to disclose any documents to establish where the funds had gone. The Applicant said that, whilst she did not recall, she was fairly certain she had not received the proceeds from the sale of the shares, that she had never had that amount of money in her bank accounts and that she had disclosed all of the bank account documents within her possession. I am not persuaded that he Respondent has discharged the evidentiary onus of establishing the existence of funds from the sale of equities in the 2006/2007 financial years.
Despite this cross-examination, I did not understand the Respondent ultimately to suggest that any asserted finds should be notionally added Back into the schedule of the property of the parties available for consideration in these proceedings. Even if he had, and even taking into account those conclusions I have reached about the Applicant’s credit, I am not persuaded to take such a course in the absence of documentary evidence to establish such assertion. I also note that the Respondent was the party responsible for managing the parties’ share portfolios until their temporary separation under the one roof for a number of months in 2006/2007 (before reconciling in 2007) such that it seems more likely than not that he may have been responsible for decisions about the same which were reflected in the contents of the 2006 taxation return.
The National Australia Bank Portfolio Facility
In mid-February 2008, the Respondent obtained a $1,500,000.00 “portfolio facility” from National Australia Bank. On 19 February 2008, the Applicant signed a guarantee in relation to this facility and it is secured over the H Town property.
Between February 2008 and December 2008, the entirety of the facility was drawn down and applied to meet various expenses such as interest repayments, share purchases, superannuation contributions, hire purchase payments, payments to the Australian Taxation Office, loan instalments and credit card expenses. That is, the facility was used to provide cash flow to meet personal, business and trust expenses and, in part at least, to pay out the Respondent’s previous business partner.
As at July 2010, the indebtedness to National Australia Bank stood at $1,493,634.00 and by 29 June 2012 stood at $1,499,223.00. The current indebtedness under the facility stands at over $1,500,000.00.
The Respondent’s evidence is to the effect that funds from this facility were used to support the family. He arranged for his financial assistant and/or advisers to maintain an account of the purpose to which facility funds were applied. As at July 2010, the Respondent’s salary account (from which, on his evidence, his and the Applicant’s expenses were met) stood at $470,140.00. By June 2012, this account stood at $750,389.00 – an increase of some $280,249.00.
Additionally, the Respondent’s account (which was connected to share investments in AA Pty Ltd) stood at $347,608.00 in July 2010 and $542,002.00 in June 2012 – an increase of $194,394.00.
It seems, therefore, that between July 2010 and June 2012 the Respondent arranged for funds apportioned to him from the portfolio facility to increase by $474,643.00.
Pre-separation credit card liability

The Respondent was not really challenged by the Applicant about his evidence that, as at separation, approximately $157,000.00 of outstanding credit card debts related to pre separation expenditure and I accept his evidence in this respect.
Allowance for taxation and realisation costs associated with the cessation of the group, the winding up of the corporate entities and the dissolution of the Trust
There is evidence before the Court as to the impact of tax and/or realisation costs. There is no evidence to suggest that it is more likely than not that these realisation costs are likely to be incurred at any particular time or, understandably, as to the circumstances which may exist at the time they are, in fact, crystallised.
As I have adopted the Scenario B approach contained within Mr V’s report for the purpose of ascribing a value to the business operated by the Respondent, it is appropriate to note his calculations for realisation and taxation costs associated with the cessation of the business as at 2018 as I have determined is reasonable and appropriate. The realisation costs in total amount to about $75,256.00[30] and the taxation costs equate to some $329,164.00.[31]
[30] On the basis of Mr V’s assumptions as relied on for the purpose of his calculations.
[31] Again, on the basis of Mr V’s assumptions as relied on for the purpose of his calculations.
There is no suggestion by the Respondent currently that he intends to close the business and/or take steps which would result in the crystallisation of these tax and realisation costs. In fact, one of his reasons for opposing the Applicant’s contention that the K Street properties should be sold before the H Town property is that this would lead to the closure of the business.
There is, I consider, significant uncertainty what costs may be incurred in the future – there is no way of knowing what changes may occur to the existing accounting and legislative regimes between now and the time at which the Respondent determines to cease the operation of his business: for example, it is impossible to know whether there will, or may, be any changes to laws or accounting standards which may impact in any way upon the calculations provided by Mr V. It is impossible to know what, if any, rollover or other relief may be afforded to a business owner such as the Respondent at the time such person transitions toward retirement.
In such circumstances, I am not persuaded that it is appropriate to include these future and contingent costs in the assessment of the value of the property of the parties. Instead, I intend to take into account, during my consideration of the relevant s 90SF(3) matters, the reality that, at some indeterminate point in time, the possibility exists that the Respondent may incur significant costs associated with the cessation of his business. Given my assessment of him as an astute and informed business operator, I have no doubt whatsoever that, in the time leading up to that determination, he will take appropriate and lawful advantage of all avenues which may be available to him to minimise the impact of the crystallisation of these costs upon his financial position after the cessation of the operation of the business at the time and in the manner he determines.
For the reasons outlined above, I find the existing interests of the parties in property of the parties and the value of the same as at the date of trial to be as follows:

Item	Ownership	Description	Value
1.	Applicant	U Street, H Town	$1,300,000.00[32]
2.	Respondent	Business operated by P Group (which comprises Q Pty Ltd & S Pty Ltd	$1,592,357.00
3.	Respondent	P Pty Ltd	NIL
4.	Respondent	R Pty Ltd	NIL
5.	Respondent – as Trustee for the Westlaw Family Trust	K street, L Town	$1,200,000.00[33]
6.	Applicant	AA Pty Ltd	NIL
Gross assets			$4,092,357.00
7.	Home loan secured over U Street, H Town	$883,646.98
8.	National Australia Bank Facility	$1,517,199.47[34]
9.	National Australia Bank loans secured over K Street properties	$650,000.00
10.	Pre-separation credit card liability	$157,000.00
11.	Loan payable by Westlaw Family Trust to S Pty Ltd[35]	$352,968.00
Total liabilities			$3,560,814.45
12.	Applicant’s entitlements	The Westlaw Superannuation Fund	NIL
13.	Respondent’s entitlement	The Westlaw Superannuation Fund	$2,077.00
Total Super			$2,077.00
Net All Assets (exclusive of superannuation entitlements)			$531,542.55

[32] X Pty Ltd valuation March 2014.

[33] As valued by National Australia Bank in March 2013.

[34] Respondent's affidavit filed 8 April 2014.

[35]Inter party loans were excluded by Mr V from his calculations as set out for scenario B but because the value of the net assets of S Pty Ltd included the loan repayable by the Trust to it, and I have included the K Street properties and the third party debt secured over them separately, it is necessary to take this liability into account.

The s 90SM(4) considerations

Financial contributions to acquisition, conservation or improvement of property

I accept that when the parties commenced cohabitation in mid-1998, the Applicant owned real property at JJ Street, H Town (“the JJ Street property”) and a new Japanese motor vehicle worth about $25,000.00. I accept that she had no other assets. Whilst the Applicant says she purchased the JJ Street property in January 1993 and the Respondent asserts it was purchased in April 1993, this difference matters little. I accept the property was bought for $230,000.00 and that the Applicant borrowed $122,296.56 from her mother to fund this purchase. This debt was ultimately forgiven and the mortgage registered over the property to secure the advance was released on 10 February 2000. The Applicant was working as a medical receptionist, earning about $28,000.00 per year. She ceased this employment not long after she became pregnant in 1999.
I accept that, when the parties commenced cohabitation in mid-1998, the Respondent owned real property at H Town (purchased at about that time for $650,000.00 using funds obtained from the sale of real property at KK Town and H Town for approximately $720,000.00), $87,000.00 in cash, a ‘luxury’ car, shares, the business and an entitlement to superannuation held within the self-managed superannuation fund. Number 2 K street had been purchased in March 1998 for $425,000.00 using funds borrowed from National Australia Bank.
Even looking only to the value of the real property owned by each party when they commenced their cohabitation, it is immediately apparent that the Respondent’s financial contributions at this point were superior to those of the Applicant. Additionally, he brought to the relationship an established and utilised income earning capacity via his ownership of the business.
At least some of the balance of the funds obtained by the Respondent from the sale of the KK Town and H Town properties were spent on extensions and renovations to the Suburb LL, H Town property. After these were completed, the H Town was sold on 21 October 2001 for about $1,100,000.00. Some of these funds were applied to the purchase of shares and some to the purchase and renovation of the other real property.
I accept the Respondent’s evidence to the effect that he established share trading portfolios for both of the parties and that, in the period from January 2000 until about 2009, profits of about $2,198,000.00 were withdrawn by them from the same. In 2006/2007 – while the parties were separated – the Applicant sold her share portfolio. As a consequence, she was assessed as having a tax liability of about $120,000.00.[36] I accept the Respondent paid at least $45,000.00 of this on her behalf after the parties reconciled in 2007. I also accept that, in 2007, the Respondent repaid Centrelink the sum of $27,601.93, being the total of amounts paid to the Applicant between 2002 and 2006.
[36] For the 2005/2006 and 2006/2007 financial years.
The Applicant subsequently sold the JJ Street property for $336,000.00 on 2 March 2000. She says she used some of these proceeds to buy real property at LL Street, H Town (“the LL Street property”) for $328,000.00 and applied some to the purchase of equities. However, the Respondent contests this assertion and says that the net sale proceeds from the JJ Street property were invested in a share portfolio. He says he paid the deposit of $32,800.00 needed to acquire the LL Street property and that an amount of $296,397.83 was borrowed from National Australia Bank. I accept that the fact that the LL Street was purchased in the Applicant’s name alone does not establish that she provided the funds for its purchase. I also accept that the property was purchased in this way as a form of asset protection – something which the parties presumably agreed at the time was beneficial to their family.
The difference between the parties is really about whether the Applicant made any specific direct financial contribution to the acquisition of the LL Street property or whether all of her funds were applied to the acquisition of shares and the establishment of a share portfolio which, initially at least, was highly profitable (but which, ultimately, resulted in significant losses). Whilst the Applicant said she applied finds to the acquisition of this property, she was unable to provide specific details of the amount she said she contributed.
I think it more likely than not that the true position was mentioned during the Applicant’s re-examination: namely, that she left it to the Respondent to apply the sale proceeds from the JJ Street property to share acquisitions and the acquisition of the next piece of real property bought in her name – and that she thought this process was repeated with subsequent sales and purchases of real property.
As an assessment of financial contributions during the course of a cohabitation of the duration of that under consideration here does not seem to me to require an accounting style audit, the difference between the parties about this aspect of their respective contributions seems of less moment than it may have been if their relationship was of shorter duration and did not involve the birth of two children.
In arriving at this conclusion, I also take into account that it is undisputed that, for a period, the share investments in which the parties engaged – using either funds provided by the Applicant from the sale of the JJ Street property or funds provided by the Respondent from the business and supported by margin loan facilities - were exceedingly profitable (before their significant collapse) and provided a return which was applied by each of them to the support of their family unit. In summary, I accept that income from the business and the profits of share portfolios established by each of the parties were applied by the parties to pay for the purchase of real property and renovations to the same. I also accept that, wherever it was applied as a consequence of investment decisions made by the Respondent, the Applicant contributed all that she had financially for the benefit of the family unit: that is, I accept she provided the entirety of the sale proceeds of the JJ Street property for use in acquiring either the next piece of real property in her name or equities as recommended by the Respondent.
The LL Street property was subsequently rented out. The rental receipts met the amount of the required mortgage repayments. After renovations were completed (at a cost of about $60,000.00-$70,000.00, sourced from the profits of share trading and the business), the LL Street property was sold in August 2001 for $470,000.00.
I accept that the net sale proceeds from the sale of this property, in an amount of about $175,000.00, were applied to the purchase of real property at 5330 U Street, H Town and to purchasing equities in the Applicant’s name. The U Street property was bought in November 2001 for $500,000.00. Again, I accept that the fact that it was purchased in the Applicant’s name alone does not establish that she provided the funds for its purchase. I also accept that it was purchased in this way as a form of asset protection for the benefit of the family unit. Given that the Applicant did not work outside the home after the parties’ first child was born in 1999, the mortgage repayments of $2,787.17 per month came from the business. Additionally, there is no evidence to suggest that the Applicant made any particular financial contribution to the acquisition of this property.
After spending on renovations, the U Street property was sold on 8 January 2002 for $650,000.00. Whilst this sale returned what might be described as a notional profit, it cannot be forgotten that funds had been spent on renovations before it was sold. Funds from the sale were then applied to the purchase of U Street, H Town (“the H Town property”), which was acquired in the Applicant’s sole name for $910,000.00 on 15 March 2002. I accept the Respondent’s evidence that, after the $45,000.00 deposit was paid, borrowings from National Australia Bank (of between $650,000.00 and $715,000.00) and the net sale proceeds from the U Street property were used to fund this purchase.
I do not accept the Applicant’s contention that because funds from real properties owned by her as part of an agreed form of asset protection were applied to the purchase of subsequent real property, she is the party to whom ‘credit’ for the contribution should be accorded. Instead, I consider that the acquisition of real property in the manner decided by the parties jointly, including how it was owned and how the borrowings needed to acquire it were obtained and were secured, all formed part of their joint approach to financial matters, intended to benefit their family.
The parties spent significant funds on extensive renovations to the H Town property. The Applicant quantifies this expenditure at about $1,390,000.00 (spent in the period from about October 2003 until early 2005). It appeared that she was not really sure of her assertion that she contributed about $1,000,000.00 from the partial sale of shares held in her name to the cost of these renovations. The Respondent denied that the Applicant made such contribution – or any at all – to the costs of renovations, instead asserting that he paid for them.
Even if a significant portion of the funds spent by the parties on renovations during their cohabitation came from the sale of shares owned by the Applicant in ‘her’ share portfolio, the reality of the situation as I apprehend it to be in relation to the equities is the same as it was for the real properties: that is, the name in which these assets were held did not necessarily reflect the direct financial contributions made to their acquisition by either party. Rather, I suspect that the reality was more that, as the parties experienced success in their ownership of equities, more were purchased and, at times, profits taken and the funds obtained applied to meet joint expenses. To the extent that funds for renovations did not come from share sales, the only other source from which they could have emanated is the business operated by the Respondent.
I note also that the Applicant accepted as possible that, through his management of shares then owned by each of the parties, the Respondent had arranged for the payment of the costs associated with the renovations to the H Town property.
There is no dispute between the parties that the Applicant also received an inheritance of $25,833.00 (between May 1993 and June 1995) and was gifted $100,000.00 by her mother in July 2003. There is no dispute that the Applicant used the $100,000.00 to purchase shares in AA Pty Ltd via the margin lending account established by the Respondent. The difference between the parties arises in the Respondent’s contention that the Applicant also applied her inheritance to the purchase of the AA Pty Ltd investments and, inferentially at least, not to the overall support of the family. This distinction does not seem to me to be particularly important given that it is undisputed that the parties obtained significant benefit from their investments – including, initially at least, those in AA Pty Ltd – and used this to fund things like significant renovations or to meet other expenses.
I accept that, at least for a period of time, the parties achieved significant returns from the investments they made in equities and in the managed investment scheme, AA Pty Ltd. So much is easily established when regard is had to the contents of the Applicant’s tax returns for the 2006 and 2007 financial years and the capital gains recorded therein. It is also a fact that they subsequently suffered significant financial losses arising out of their ownership of units in this managed investment scheme: for example, the self-managed superannuation fund seems to have incurred a loss of about $250,000.00 by virtue of the decision to purchase units in the scheme.
I accept that the Applicant did not play any active role in the Respondent’s management of the business or its strategic direction. It was, after all, something he brought to the relationship and something in respect of which he clearly had significant expertise. Whilst the Applicant worked in the business for a period (in 1999) as a part-time filing clerk, I accept that she was paid for this work.
Post separation contributions
When the parties separated in July 2010, the Respondent moved from the H Town property to live in rental premises at a cost of approximately $3,856.67 per month. At that time, he was meeting the mortgage payment (in an amount of $6,760.00 per month) for the H Town property as well as the private portion of interest payments for funds obtained from the portfolio loan facility secured against the H Town property (in an amount of $6,634.00 per month). That is, at separation and immediately thereafter, the Respondent paid a total of about $13,394.00 per month so that the Applicant and the children could continue to live in the H Town property. He continued to meet these payments until about September 2011 in order to prevent National Australia Bank from foreclosing on the house.
On 23 September 2011, Forrest J ordered that the Respondent pay the rates, mortgage and associated car payments, credit card payments as and when they fell due. He also ordered that the Respondent pay child support in an amount of $37,142.00 per annum. The Respondent was further ordered to pay the fees for Mr V, appointed as the single expert witness to value the parties’ interests in nominated entities and also X Pty Ltd, who were appointed as the single expert to value the parties’ interests in real property. The issue of the Applicant’s contribution to such costs was reserved to the trial judge.
The Respondent’s evidence is that the terms of the September 2011 Order resulted in him being required to meet the Applicant’s expenses and child support in a combined amount of $14,547.00 per month.
On 16 November 2012, Forrest J varied the September 2011 Order by reducing the amount payable by way of spousal maintenance from $500.00 per week to $300.00 per week. He ordered that the Respondent pay the Applicant up to $3,856.67 per month to enable her to rent a property. Further, a dollar for dollar litigation funding order was made in default of the Respondent meeting the fees of the single expert witness. The Respondent says that the consequence of this change meant that he was required to meet the Applicant’s expenses and child support in a combined amount of $13,681.00 per month.
On 18 December 2012, Forrest J made an order by consent by which the Respondent was to deposit the sum of $28,700.00 to his solicitor’s trust account before 18 January 2013 and to pay the amount owing to the body corporate associated with the H Town property on or before 20 December 2012: he was to pay rates, body corporate, National Australia Bank Visa cards and arrears of child support. The Applicant was ordered to provide the Respondent with copies of invoices in relation to body corporate fees, rates or credit card obligations and he was to notify her by email when payment of these had been made.

The Respondent advances that an approach to the Bank to persuade it to refinance the facility (which will also allow a discharge of the Applicant’s guarantee for the portfolio facility) is only likely to be acceptable to National Australia Bank if he is able to proffer real property (the K Street properties) as security – he can only do this once the Applicant releases the caveats over those properties.
Upon the removal of the caveats, the business will again be able to access the following commercial facilities:
a)an overdraft facility of $50,000.00 (all of which remains available to be drawn); and
b)a Master Asset facility with a limit for S Pty Ltd of $195,000.00 and a limit for Q Pty Ltd of $230,000.00; and
c)an International Trade facility with a limit of $450,000.00 (a facility that cannot be drawn upon to inject capital into the business or to pay personal expenses but which can be used to pay for goods purchased to complete contracted works); and
d)a bank guarantee facility.
I accept the Respondent’s submission that access to such facilities will enable him to meet his outstanding child support obligations. I consider that access to such facilities will also permit him to make appropriate contribution to the Applicant’s support at least for a period of time after the sale of the H Town property and will also provide him with the ability to pay the Applicant the sum needed as a consequence of my determination about those orders which are just and equitable in all the circumstances of this case.
I have already expressed my conclusion that the Respondent is unable to sell the right of agency he has by the terms of the Memorandum of Agreement with HH/HHA. Given this conclusion, the Applicant’s contention that “the business” should be sold amounts to the proposition that the business equipment owned and used by the business should be sold. A sale of this would crystallise those realisation and taxation costs outlined in Mr V’s report.
Additionally, the cessation of the business currently operated by the Respondent would simply eliminate his capacity to continue to pay child support for the children and his capacity to pay any spousal maintenance into the future.
Whilst the K Street properties have been valued at $1,200,000.00 this occurred in 2013. There may have been an increase in the value of these properties. It is, I think, appropriate that the Respondent be required to approach National Australia Bank (with whom he clearly has an excellent working relationship and by whom it is highly likely that he is regarded as a valued customer given his long association with that lender) in writing to ascertain whether it is prepared to accept the K Street properties as, in essence, substituted security for the entirety of the $1,500,000.00 portfolio loan facility without requiring any of the sale proceeds from the H Town property to be applied to reduce the same. It is also appropriate that the Applicant be provided with a copy of the correspondence sent by the Respondent to National Australia Bank by which such request is made.
If National Australia Bank is prepared to facilitate this substitution – noting, of course, that the sale of the H Town property would result in the discharge of the entire approximately $900,000.00 home loan facility associated with that property – then the balance of the proceeds of the same (after payment of any outstanding body corporate fees, rates and other property expenses associated with the H Town property) would be available to be used in paying to the Applicant that amount I have concluded should be paid to her.
Whilst such a course would leave the Respondent responsible for almost all of the $1,500,000.00 portfolio loan facility – from which significant funds were drawn for the support of the family unit during the parties’ relationship – it would also mean that there was a lump sum available for distribution between the parties.
If National Australia Bank is unwilling to accept the K Street properties as substituted security without the application of any funds from the sale of the H Town property which remain after the discharge of the home loan secured over that property, then National Australia Bank will no doubt simply apply that excess to the reduction of the portfolio loan facility upon the sale of the H Town property. If this occurs, the liabilities which then remain to be secured over the K Street properties will stand at about $1,850,000.00.
The sale of the property will also free up $6,785.00 per month (the amount of the home loan repayments) and also cause a decrease in the quantum of some of the monthly repayments payable pursuant to the portfolio loan facility.

Should a Trustee for sale be appointed to sell the H Town property?

The Respondent opposes an order appointing a trustee for sale to carry out the sale of the H Town property because of the costs likely to be associated with such appointment. It was submitted, in essence, that any costs incurred by a trustee mean that less money is available to repay the debt outstanding to National Australia Bank and less is available to meet the Applicant’s ongoing maintenance payments if the same are ordered. I accept the tenor of these submissions.
In addition, there is no evidence before the Court at present as to the identity of any person prepared to act as Trustee for Sale of the H Town property.

Is it appropriate that the Respondent be appointed trustee for sale of the H Town property?

I have no doubt that these parties could not cooperate to affect the sale of the H Town property. Their diametrically opposed positions are accurately reflected by their diametrically opposed proposals about that property which should be sold in order to bring about their financial separation.
I have no doubt that the Applicant would oppose any order by which the Respondent was appointed trustee for sale of the H Town property. Similarly, I have no doubt that any attempts by the Respondent to affect repairs to that property to prepare it for sale are likely to be attended by failure whilst the Applicant remains living in the property. After all, her evidence was to the effect that, whilst she was happy for the Respondent to pay for work needed to be done to the H Town property before it was sold, she was not happy for him to be involved in decisions about what work should be done.
I fully appreciate that the Applicant will be entirely dissatisfied with an order which places responsibility for the sale of the H Town property entirely in the Respondent’s hands. I also fully appreciate that at least some of her opposition to such an order is likely to arise from the complete absence of trust between the parties: that is, she will, in all probability, consider that the Respondent will in some way act so as to deprive her of funds to which she considers she is entitled.
The stark reality here though is that the Court has two now self-represented litigants who have each spent significant sums on legal fees and who each have either significant outstanding legal costs (on the Respondent’s part) or significant borrowings from family members to meet the same (on the Applicant’s part). The time since separation has been overwhelmingly costly in monetary terms.
An attempt to reduce any further costs and avoid impasses about the nature and extent of work to be done in readying the H Town property for sale, disagreements about the agent to be appointed for the sale of the property and matters associated with this can, it seems to me, only occur by entrusting the sale of the property to one party. Whilst it is owned by the Applicant and she currently lives in it, nothing in the evidence suggests any willingness on her part over the last five years to attend to its sale. She clearly is unable to fund the repairs likely to be required to ready the property for sale and there is no prospect the parties will agree about what repairs should be done, how and when these should be carried out or by whom or the funds which should be spent on this exercise.
For all of these reasons, I consider that the only realistic way to achieve the sale of the H Town property with an acceptable timeframe is to require the Applicant to vacate the property and to appoint the Respondent as trustee for its sale, subject to requirements of keeping the Applicant informed about the process of the same.
Whilst it is often usual to provide a party with the opportunity to see if that party is able to arrange their finances so as to be able to acquire a property, the Applicant in this case has had more than sufficient time to be able to see whether this is a realistic prospect.
The contents of the most recent valuation report have lead the Respondent to propose he be permitted to undertake rectification works before the property is sold. He outlined that he hoped to be able to increase the return from the property by doing these works and that, because of the nature of his business and the employees available to him, the costs of undertaking the same may be minimised. I accept that this course is that most likely to result in the highest return to the parties from the sale of the H Town property.

Order for the payment of arrears of monies payable pursuant to previous orders

The parties agree that there are arrears of maintenance ordered to be paid by the Respondent to the Applicant.
They agree that, in the period from November 2012 until February 2014, the Respondent failed to pay $4,200.00 he was required to pay. In so far as the period between September 2011 and November 2013 is concerned, the Applicant contends that the Respondent is in arrears in an amount of $13,500.00 whilst he accepts he is in arrears in an amount of $12,100.00.
Given my concerns about the overall accuracy of the Applicant’s evidence, I intend to accept the Respondent’s evidence about the monies payable by him. Consequently, I find that, for the period from September 2011 until February 2014, the Respondent’s unpaid but outstanding maintenance (pursuant to operative order/s) is in an amount of $16,300.00.
The Applicant contends that the Respondent is in arrears in relation to child support payments (for the period between 30 September 2011 to 31 January 2014) in an amount of $39,919.72. In arriving at this calculation, it appears she has ignored the effect of the determination by the Child Support Agency to allow the Respondent a 30 per cent offset for bills paid by him on behalf of the Applicant and the children (such as the mortgage repayments for the H Town property) provided that he pays the entirety of the assessed amount by the due date. The Respondent accepts he has arrears of child support in an amount of $16,521.93 for this corresponding period.
The Respondent accepted that, as at 14 April 2014, his total arrears of maintenance and child support amounted to $34,520.00.
Whilst the Respondent sought the discharge of those arrears and those referable to unpaid maintenance, I am not persuaded that he has discharged the onus of establishing a proper basis for such an order. The arrears owing arose as a consequence of orders made by the Court which were not the subject of a successful application to vary. Additionally, I rely on those observations outlined above in paragraphs 176 and 177.
Any other outstanding payments which relate to the H Town property (such as body corporate fees, rates and water charges) will be able to be met from the sale proceeds of the same.
For the reasons expressed, I am satisfied in all the circumstances of this case that it is just and equitable to make an order in these property settlement proceedings between the parties in terms of that contained at the start of these Reasons.

Spouse Maintenance

The Applicant seeks an order for the payment of spouse maintenance for a period of five years from the date of the Order. The amount sought varies depending on the circumstances but, ultimately, would see the Respondent pay $1,190.00 per week.
When regard is had to the contents of the Applicant’s most recent Financial Statement[53], her weekly costs are asserted to be in an amount of $333.00 (exclusive of rent or mortgage costs). These needs could not be thought to be anything other than reasonable.
[53] Filed 14 March 2014.
The Respondent is liable to maintain the Applicant to the extent that he is reasonably able to do so if and only if she is unable to support herself adequately by reason of age, or physical or mental incapacity for appropriate gainful employment or for any other adequate reason.[54] If satisfied of such inability and that the Respondent has capacity, reasonably, to maintain her, the Court may make such order as it considers proper for the provision of maintenance to the Applicant.[55]
[54] S 90SF of the Act.
[55] S 90SE of the Act.
The Applicant has not worked full time outside the home since about 1999 (about 16 years ago). She is currently 51 years of age. She started a diploma course in January 2013. She thought, at that time at least, that she would complete this study by July 2014. There is no evidence about those employment opportunities that may be available to her upon completion of this qualification.
However, since separation she has worked, on occasions, on a casual or part-time basis as a support worker.
As at March 2014, the Applicant was financially supported via the receipt of payments for Austudy ($212.33 per week), Family Tax Benefit A and B ($156.36 per week). She was in receipt of child support of $458.43 per week.[56]
[56] Being a little less than 70 per cent of the $714.27 per week assessed.
I am persuaded that the Applicant has established that she is unable, by virtue of physical or mental incapacity, or the care of the children or for any other reason, to support herself adequately. I am also satisfied that the Respondent has the capacity to pay maintenance. He correctly acknowledged this capacity by proposing, in his Amended Case Information document filed 25 March 2013 (and confirmed at paragraph 58 of his April 2014 written submissions) that he pay maintenance of $4,000.00 per month for two years from the date of the orders. Additionally, once the H Town property is sold, the Respondent will be relieved of the obligation to pay about $1,560.00 per week by way of mortgage repayments.
I am also satisfied that, once the caveats over the K Street properties are removed, the Respondent will have access to additional borrowings which can be used to ensure that the Applicant is able to vacate the H Town property. Without the payment by him of funds for a bond and to be used to meet removalist’s costs, there is a very real prospect that the Applicant (and the children) will not be able financially to vacate this property.
The difference in the quantum of maintenance sought by the Applicant and that proffered by the Respondent is $13,880.00 per annum. Given the July 2010 separation of the parties, and the significant delay in finalising this matter, I have concluded that the appropriate future time during which the Respondent shall be required to pay maintenance to the Applicant is one year from the date of this Order. I have also concluded that an order for the payment of $1,000.00 per week during this period is one which is proper, taking into account the Applicant’s reasonable needs (which I quantify in this amount, inclusive of an allowance for accommodation costs) and the Respondent’s capacity to make such payments upon the release of the caveats over the K Street properties and the later sale of the H Town property.

Child Support Departure

The Applicant seeks a departure, pursuant to s 117 of the Child Support (Assessment) Act 1989 [“the CSAA”], from the administrative assessment of child support payable by the Respondent for the children such that, for the period from the date of the Order to the date agreed between the parties or ordered by the Court, the annual rate of child support payable by the Respondent is $18,571.00 per child, increased annually in accordance with the CPI. She also seeks an order requiring him to pay the children’s school fees and the costs of private health insurance and other “gap” payments.
The Respondent’s child support obligation is presently in this amount as a result of an interim order made by Forrest J on 23 September 2011.
According to the wife’s March 2014 Financial Statement, the children’s costs (exclusive of an appropriate apportionment of the costs of accommodation and expenses associated with that) are quantified at $495.00 per week.
Whilst the amount of child support payable by the Respondent is $714.27 per week, for the reasons already discussed, the Applicant actually receives $458.43 per week. That is, she is required to meet about $36.57 of her assessment of the children’s weekly needs (exclusive of an appropriate apportionment of the costs of accommodation and expenses associated with that). Once the funds used by the Department of Human Services[57] to “credit” 30 per cent of the $714.27 are exhausted, the Applicant will, if the terms of the current interim order find reflection in a final order, be entitled to receive the entire assessed amount of $714.27 each week.
[57] Which, as I understand it, now encompasses the Child Support Agency.
However, many changes to both parties’ financial circumstances have occurred since the September 2011 Order was made. Whilst I am not persuaded that it is appropriate or proper to release the Respondent from the obligation to pay those outstanding arrears of child support which have arisen as a result of his non-compliance on occasion with the order, it seems to me to be appropriate for the future assessment of child support payable by him to occur via the process of administrative assessment implemented by the Department of Human Services. I am not persuaded that the circumstances of this case – where the Respondent has accepted on oath that funds available to him from the business were $305.000.00 in 2013 – are “special” in the meaning attributed to that term by s 116 of the Child Support (Assessment) Act 1989 (Cth)
Whilst both parties are parties to an application pending in a Court having jurisdiction under the Act, I am not satisfied that the Applicant has established that this case involves special circumstances so as to warrant the Court - rather than the procedure provided for under the Child Support (Assessment) Act –considering whether an order departing from the administrative assessment should be made.
It is not my intention, however, that there is any hiatus in the Respondent’s obligation to pay child support for the children. An immediate discharge of the 23 September 2011 Order would, arguably, have that effect. In order to prevent this from occurring, I intend to order that the Respondent’s obligation to pay child support in the manner provided for by the 23 September 2011 Order shall cease upon the Department of Human Services issuing a child support assessment calculated using the Respondent’s child support income amount.
The Applicant also seeks, pursuant to s 124 of the CSAA, that the Respondent pay to her, by way of non-periodic child support in addition to the amount sought above:
All school fees, as defined in the Orders sought in the Case Outline, at [BB School] and the [Suburb QQ] School or such other private school of similar standing and cost in terms of tuition and other fees; and
All private health insurance premiums for the children at the current level of insurance and an amount equal to the gap payment for medical, hospital, optical, dental, orthodontic, physiotherapy and other similar expenses in relation to the children which are not covered by the private health fund rebate.
The children have not attended any private school since about June 2011. The Applicant’s evidence does not permit of any finding about the quantum of the other amounts sought. In such circumstances, I am not persuaded to make an order in the terms sought by the Applicant.

Contribution by Applicant to costs already met by the Respondent

On 23 September 2011, Forrest J ordered that the Respondent initially meet the costs of the single expert witness appointed to value the business (Mr V) and the costs associated with obtaining valuations of the real property. His Honour reserved the issue of the Applicant’s contribution to these costs to the trial judge.
The Respondent seeks an order that the Applicant pay the costs of and incidental to the preparation of Mr V’s report.
I am not persuaded that it is appropriate that an order now be made requiring the Applicant to contribute to the costs of this valuation already borne by the Respondent. I arrive at this conclusion taking into account the reality of the Applicant’s financial situation, the Respondent’s relatively superior financial position and that the resolution of proceedings between the parties can only have occurred with the assistance of such expert evidence: the fact that the party in a position of relative financial strength is called upon to meet all of these costs does not, of itself, compel the conclusion that the party in the relatively weaker financial position should always be required to make financial contribution to the same. The circumstances of this case are such that I am not persuaded that it is justified or appropriate to make an order now requiring the Applicant to contribute to those costs already met by the Respondent.

Costs associated with the proceedings

The Respondent was required to pay the entirety of the $6,050.00 associated with obtaining a report from Dr F, psychiatrist, at first instance. The question of the Applicant’s contribution to this cost was reserved. Having regard to the relative disparity between the Respondent’s income earning capacity, income and financial resources and those of the Applicant, I am not persuaded that it is proper in all the circumstances to make an order requiring the Applicant to reimburse the Respondent for any portion of these costs.

I certify that the preceding two hundred and fifty-five (255) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Hogan delivered on 24 July 2015.

Associate:

Date: 24 July 2015

[2015] FamCA 590

24 July 2015

Key Legal Topics

Areas of Law

Family Law

Civil Procedure

Legal Concepts

Consent

Injunction

Remedies

Costs

Jurisdiction

Procedural Fairness