CANTANOR & BEIDENHOPE

FAMILY COURT OF AUSTRALIA

CANTANOR & BEIDENHOPE

[2013] FamCA 243

FAMILY LAW – CHILDREN – With whom a child lives – Undefended hearing – Where the Husband has not seen the child in over four years – Where the Husband has made no attempts to communicate with the child or exercise parental responsibility – Mother to have sole parental responsibility – Child to live with Mother

FAMILY LAW – PROPERTY – Undefended hearing – Non-disclosure of documents – Where the Husband has been overseas since 2008 – Where the Wife has made all financial contributions to the property post-separation – Where the Wife has made substantial contributions as homemaker and parent during cohabitation and post-separation

Child Support (Assessment) Act 1989 (Cth)
Family Law Act 1975 (Cth)
Family Law Rules 2004 (Cth)
Family Law (Superannuation) Regulations 2001(Cth)

Allesch v Maunz (2000) 26 Fam LR 237
Biltoft & Biltoft (1995) FLC 92-611
Dixon & Dixon [1999] FamCA 426
Hickey & Hickey (2003) FLC 93-143
In the Marriage of Af Petersens (1981) FLC 91-095
MRR v GR (2010) 240 CLR 461
Omacini and Omacini (2005) FLC 93-218
Oriolo v Oriolo (1985) FLC 91-653; (1985)10 Fam LR 665
Stanford & Stanford (2012) FLC 93-518
Weir (1993) FLC 92-338

APPLICANT:

Ms Cantanor

RESPONDENT:

Mr Beidenhope

FILE NUMBER:

BRC

117

2010

DATE DELIVERED:

17 April 2013

PLACE DELIVERED:

Brisbane

PLACE HEARD:

Brisbane

JUDGMENT OF:

Kent J

HEARING DATE:

29 January 2013

REPRESENTATION

SOLICITOR FOR THE APPLICANT:

Hopgood Ganim

FOR THE RESPONDENT:

No appearance

Orders

It is Ordered That

PROPERTY SETTLEMENT

Retention of personal property

Immediately upon these Orders being made, the Wife shall retain and/or receive, as part of her entitlement to property settlement, as her absolute property all her right, title and interest to and in, and the Husband shall relinquish and/or transfer to the Wife, all his right, title and interest to and in, if any, and if necessary, the Husband shall sign all necessary documents and do all necessary acts to transfer to the Wife, the following:
(a)The former matrimonial home located at B Street, C Town registered in the Husband and the Wife’s joint names, pursuant to Order 4 herein (the former matrimonial home).
(b)The furniture, chattels and household effects in the Wife’s possession and in addition, the following items which are to be returned by or on behalf of the Husband to the Wife, at the Husband’s sole expense, forthwith:
(i)the tea set gifted to the Wife from the Paternal Grandmother; and
(ii)the vase gifted to the Wife from the Maternal Grandmother;
(c)       The Jewellery in the Wife’s possession;
(d)       The personal belongings in the Wife’s possession;
(e)Motor vehicle 1, registration number …, currently in the Wife’s possession and registered in the name of the Husband, pursuant to Order 8 herein;
(f)Motor vehicle 2, registration number …, currently in the Wife’s possession, pursuant to Order 8 herein;
(g)The Box trailer, registration number …, currently in the Wife’s possession and registered in the name of the Husband, pursuant to Order 8 herein;
(h)The Wife’s bank accounts and credit card account, in her sole name, including but not limited to the following:
(i)ANZ Access Advantage Account (no. …);
(ii)ING Direct My Savings Maximiser Account (no. …);
(iii)Credit Union Account (…) now closed; and
(iv)ANZ Gold credit card (no. …);
(i)        The Wife’s superannuation entitlements including but not limited to:
(i)her entitlement with Australian Super (member no. …);
(ii)her entitlement with Super Fund 1 (member no. …);
(iii)her entitlement with Super Fund 2(client no. …); and
(iv)her entitlement with Super Fund 3 (member no. …);
(j)        The Wife’s tax refund, if any, for the financial year ending 30 June 2012;
(k)       The loan owing by the Wife to Mr D;
(l)A cash payment from the Husband in the amount of $183,861.56.
Immediately upon these Orders being made, the Husband shall retain and/or receive, as part of his entitlement to property settlement, as his absolute property all his right, title and interest to and in, and the Wife shall relinquish and/or transfer to the Husband, all her right, title and interest, if any, and if necessary, the Wife shall sign all necessary documents and do all necessary acts to transfer to the Husband, the following:
(a)The Husband’s interest, whether legal or equitable, if any, in the property located at E Street, F Town in the Netherlands;
(b)The furniture, chattels and household effects in the Husband’s possession save for the items referred to in Order 1(b) herein;
(c) The jewellery in the Husband’s possession;
(d) The personal belongings in the Husband’s possession;
(e)Motor vehicle 3, registration number …, in the possession of and registered in the name of the Husband;
(f)Subject to Orders 1(l) and 10 herein, the Husband’s bank accounts and credit card account, in his sole name, including:
(i)ING Bank Account (no. …);
(ii)ING Bank Account (no. …);
(iii)ING Bank Account (no. …);
(iv)Any other account/s located in Australia, the Netherlands and/or Indonesia;
(g)The Husband’s interests in G Pty Ltd ACN … (deregistered) and H Pty Ltd ACN … and the Husband shall indemnify the Wife and keep her indemnified in relation to all actions, claims or demands by the Commissioner of Taxation in relation to any taxation liability (including income tax, capital gains tax, GST or fringe benefits tax) that the Husband may incur or has incurred by way of assessments, reassessments, penalties or interests on tax howsoever arising as a result of his involvement and office holdings in G Pty Ltd and H Pty Ltd;
(h)The Husband’s superannuation entitlements including but not limited to:
(i)His entitlement with Super Fund 4 (member no. …);
(ii)His entitlement with Super Fund 5 (member no. …);
(iii)His overseas entitlements with Super Funds 6, 7, 8 and 9 (member no. …);
(i)The Husband’s medical and life insurance policy with J Pty Ltd (policy no. …);
(j)The loan owing to Ms K;
(k)The loan owing to the Husband’s great uncle.

The former matrimonial home

Within 30 days from the date of the Orders and contemporaneously with Orders 8 and 9 herein, the Husband and the Wife shall sign all necessary documents and do all necessary acts, to transfer to the Wife, the Husband’s interest in the former matrimonial home, free from any encumbrance and at the Husband’s sole expense.
Contemporaneously with Order 3 herein, the Husband deliver up to the Wife the original certificate of title … issued in respect of the former matrimonial home and in the event the Husband fails to do so, pursuant to Order 15 herein, the Wife be at liberty to seek that the Deputy Registrar of the Family Court of Australia execute all documents in the name of the Husband including but not limited to the following:
(a) Form 17 Request to Dispense with Production of Instrument; and
(b) Statutory Declaration of the Husband.
The Wife shall be entitled to have sole use and occupation of the former matrimonial home to the exclusion of the Husband.
The Husband shall assign to the Wife all of his right, title and interest and benefit if any to and in any insurance policy for the former matrimonial home upon the transfer of the property.
The Husband shall sign all necessary documents and do all necessary acts so as to transfer to the Wife’s sole name any utility services relating to the former matrimonial home including but not limited to electricity, gas and land line telephone and in the event the Husband fails to do so, pursuant to Order 15 herein, the Wife be at liberty to seek that the Deputy Registrar of the Family Court of Australia execute all requisite documents on behalf of the Husband.

Transfer of motor vehicles

Within thirty (30) days from the date of these Orders and contemporaneously with Orders 3 and 9 herein, the Husband and the Wife shall do all acts necessary and shall sign all necessary documents to transfer to the Wife’s sole name, the Husband’s right, title and interest to and in, if any, motor vehicle 1, registration number … free from encumbrance, motor vehicle 2, registration number … and the Box trailer, registration number …, free from encumbrance.

Cash payment

Contemporaneously with Orders 3 and 8 herein the Husband shall pay or cause to be paid to the Wife, the cash sum of $20,124.94 on account of the indemnity costs ordered by the Full Court of the Family Court of Australia on 30 May 2012 following the dismissal of the Husband’s Appeal proceedings and such transfer of other cash payment.

Joint bank accounts

The parties shall forthwith do all acts necessary and sign all necessary documents to close all joint bank accounts including but not limited to the following:
(a)       ANZ Access Advantage Cheque Account (no. …); and
(b)       ING Direct My Savings Maximiser Account (no. …); and
(c)       ING account in the names of the children.
Any credit funds held in any joint account are to be distributed to the Wife.

Liabilities

The Wife be solely responsible for and meet payment of all liabilities in the Wife’s name but excluding any liabilities dealt with in these Orders and the Wife indemnify and keep indemnified the Husband from any liability howsoever arising there under including but not limited to the following:
(a) The Wife’s ANZ credit card (no. …);
(b) The Wife’s personal tax liabilities (if any); and
(c)The Wife’s unsecured personal loan owing to Mr D on account of living expenses and legal fees incurred since separation.
The Husband be solely responsible for and meet payment of all liabilities in the Husband’s name but excluding any liabilities specifically referred to in these Orders and the Husband indemnify and keep indemnified the Wife from any liability howsoever arising there under including but not limited to the following:
(a)The Husband’s credit card liabilities in Australia, the Netherlands and Indonesia;
(b)The Husband’s personal tax liabilities (if any), in either Australia, the Netherlands and/or Indonesia;
(c)The Husband’s personal loan to Ms K, whether secured or unsecured;
(d)The Husband’s personal loan owing to his great uncle, whether secured or unsecured;
(e)Any other loan and/or liability of the Husband whether secured or unsecured and wherever situate.

General retention and release

The Husband and the Wife each retain as his or her (as the case may be) own property absolutely, all assets (other than those dealt with herein) and financial resources of whatsoever description and wheresoever situate both real and personal of which that party is the legal owner of and/or in the possession of and/or under the control of that party at the date that these Orders are made by the Family Court.

Miscellaneous

Each party do and procure the doing of all things and sign and procure the signing of all documents necessary to give full force and effect to the provisions of these Orders and in the event that either party refuses or neglects to comply with any provision of these Orders within seven (7) days of a written request to do so, then a Deputy Registrar of this Court at Brisbane is appointed to execute all documents in the name of that party necessary to give validity and operation to these Orders. A written request to give full force and effect to the provisions of these Orders shall be given to the Wife care of Hopgood Ganim Lawyers and to the Husband care of E Street, F Town, the Netherlands.
Save as otherwise provided herein the transferee spouse or the spouse receiving the benefit of any transaction pursuant to these Orders prepare the documentation necessary to give effect to the provisions of these Orders at their cost and further be responsible for the payment of registration fees and all other fees in relation to the transfer of the asset to their name.
Any duty payable on transactions arising from these Orders or any documents executed pursuant to these Orders be paid by the transferee spouse or the spouse receiving the benefit of such transfer or transaction.
Either party have liberty to apply to this Court on the giving of seven (7) days notice in writing to the other for the interpretation and/or enforcement of the terms and conditions hereof and for consequential orders.

PARENTING

It is declared that the presumption of equal shared parental responsibility is rebutted in the best interests of the subject child and the Wife shall have sole parental responsibility in relation to the child of the marriage L born … July 1997 (the child).
The child shall live with the Wife.
The child shall spend time with the Husband at all times as may be agreed between the parties in writing.
The child be at liberty to communicate with the Husband at any reasonable time in accordance with their wishes and the Wife shall facilitate the child’s access to any means of communications necessary for this purpose.

CHILD SUPPORT

The Wife’s application for a child support departure order pursuant to s 117 of the Child Support (Assessment) Act 1988 (Cth) be dismissed.

COSTS

Within sixty (60) days the Husband pay to the Wife her costs of and incidental to the Part VIII proceedings on an indemnity basis in an amount to be agreed or failing agreement to be assessed on an indemnity basis.

OTHER

The Wife forthwith forward to the addresses for the Husband, identified in her affidavit material in support of this application, a copy of these Orders and the reasons for judgment.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Cantanor & Beidenhope has been approved by the Chief Justice pursuant to s121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT BRISBANE

FILE NUMBER: BRC 117 of 2010

Ms Cantanor

Applicant

And

Mr Beidenhope

Respondent

REASONS FOR JUDGMENT

Introduction

The Applicant Wife, Ms Cantanor (“the Wife”) commenced financial proceedings under Part VIII of the Family Law Act 1975 (Cth) (“the Act”) now more than three years ago on 7 January 2010. Her Amended Initiating Application was filed on 26 October 2012.
The Respondent Husband, Mr Beidenhope (“the Husband”) filed a Response to the Wife’s Initiating Application but has not filed a Response to the Wife’s Amended Initiating Application nor did the Husband appear, either in person or by representative, at the trial of these proceedings on 29 January 2013. As such, the Wife sought that the matter proceed to be heard and determined on an undefended basis.
The rules of procedural fairness and natural justice need to be considered before determining the matter on an undefended basis. Within the rule of procedural fairness lies the indispensible requirement of the Court’s system of justice that a party being affected by a decision have the opportunity to be heard. As highlighted by Kirby J in Allesch v Maunz (2000) 26 Fam LR 237, where a person’s interests may be adversely affected by a court’s decision, that person must be afforded an opportunity to place before the court material information and submissions before the decision is made.
As was emphasised by Kirby J it is the opportunity to be heard which is essential to procedural fairness, not that the court must receive evidence or submissions on behalf of that party before making orders. The principle does not require the decision-maker to actually hear the party. As Kirby J stated in Allesch v Maunz (supra) (at [38]):
…Sometimes, through stubbornness, confusion, misunderstanding, fear or other emotions, a party may not take advantage of the opportunity to be heard, although such opportunity is all that is provided. Affording the opportunity is all that the law and principle require.
(emphasis added)
Relevant to the requirement that the Husband have an opportunity to be heard and the conclusion that such opportunity has been afforded to the Husband the following procedural history is recorded.

Factual History

The Wife was born in Australia in 1961 and is now 51 years of age. The Husband was born in the Netherlands in 1956 and is now 57 years of age. The parties commenced cohabitation in or about January 1990 in South Africa and married in 1994 in the Netherlands. They relocated to Brisbane in about May 2002 and separated on a final basis on or about 20 September 2008. The Husband returned to the Netherlands in or about September or October 2008.
There are two children of the marriage, M, born in April 1995, who is now 18 years of age and L, born in July 1997, who is now 15 years of age. Since separation, the children have lived with the Wife in Australia in the former matrimonial home and have not spent any time with or communicated with the Husband. To the best of the Wife’s knowledge, the Husband has not returned to Australia since separation.

Procedural History

The Husband commenced proceedings for dissolution of marriage, spousal maintenance and property division in the City 1 District Court, Netherlands in December 2008. His application was struck out by the Dutch court in early January 2010 on the basis that the Dutch court lacked jurisdiction to determine the matter as the Husband had not been resident in the Netherlands for six months prior to filing his application, a jurisdictional requirement under Netherlands law.
Immediately after the City 1 District Court’s decision, the Wife filed an Initiating Application in this Court on 7 January 2010 seeking property settlement orders.
On 6 April 2010 the Husband filed a Notice of Appeal against the decision of the City 1 District Court in the Dutch Court of Appeal of ‘s-Hertogenbosch.
The Husband was served with the Wife’s Initiating Application on 14 June 2010 and the Wife received an email from the Husband’s legal representatives, a Dutch firm of Moszkowicz, Moszkowicz, Moszkowicz & Moszkowicz confirming receipt of the Initiating Application. On 20 October 2010, the Husband filed an application to stay the proceedings in this Court on the basis that there were proceedings on foot in the Netherlands and that the parties had entered into a pre-nuptial agreement in the Netherlands which provided that the parties were to resolve all disputes in the Netherlands.
The Husband’s appeal in the Netherlands was dismissed on 14 December 2010 confirming the City 1 District Court decision. The Husband then filed a further application for dissolution, spousal maintenance and property in the Netherlands on 19 January 2011.
The Husband participated in the hearing of the application to stay the proceedings in this Court on 5 August 2011. The stay application was dismissed by Forrest J in his Honour’s judgment delivered on 30 August 2011. On 22 September 2011 the Husband filed a Notice of Appeal seeking leave to appeal Forrest J’s decision.
On 23 and 26 March 2012, the Husband’s legal representatives in Australia, Charles Cooper Lawyers, filed two Notices of Ceasing to Act in both the substantive property settlement proceedings and the Husband’s appeal proceedings. The Husband has not participated in proceedings in this Court since March 2012 in relation to either the appeal of Justice Forrest’s decision nor the substantive proceedings. The Husband has not filed any court documents in response to the Wife’s Amended Initiating Application nor responded to any of many communications by the Wife’s legal representatives.
Notably, on 30 May 2012, the Full Court (Coleman, Strickland & Murphy JJ) dismissed the Husband’s appeal of Forrest J’s decision and ordered that the Husband pay the Wife’s costs of and incidental to the appeal and the Wife’s application in an appeal on an indemnity basis. This was despite the Husband not participating in the proceedings. Coleman J (with whom Strickland & Murphy JJ agreed) discussed the requirement that the Husband have an opportunity to be heard and stated (at [22]):
… As Kirby J has observed in the past, natural justice is the opportunity to be heard, and there is only so much that can reasonably be done to facilitate the opportunity to be heard. If a litigant steadfastly declines to participate in the process, having been afforded every reasonable opportunity to do so, that ought not, and in my view, in the circumstances of this case should not rebound on the opposing party.

In the Full Court decision, Coleman J found the Husband had been given every reasonably opportunity to be heard. His Honour discussed the evidence upon which that finding was based. Primarily important was a series of emails sent by the Wife’s solicitors and the Court advising the Husband of the appeal hearing date.
The Husband had responded to one of the emails sent by the Court. While the Husband made various assertions of fact with respect to his financial circumstances and other issues surrounding his knowledge and experience of Australian law and procedures, the email confirmed the Husband was aware of the hearing date of the appeal and despite this, he did not seek an adjournment nor indicate that he intended to participate.
The Court responded to the Husband’s email reiterating when the appeal would be heard and concluding:
In the event you choose not to appear the Court may determine the appeal in your absence and consider the application made by the respondent for this appeal to be dismissed.
The Full Court was satisfied that the Husband was aware of the appeal and given every reasonable opportunity to be heard in the appeal and had subsequently chosen not to participate.
In respect of the substantive proceedings before me, there can likewise be no doubt the Husband has had the opportunity to be heard. The Wife now seeks property, parenting and child support orders. The Wife submits the Husband has been made aware of all the orders sought by the Wife. I accept that submission.
The Wife’s solicitor, Amity Anderson, deposed in her affidavit filed 23 January 2013 the correspondence that has been sent to the Husband in relation to these proceedings (and annexed the relevant correspondence to the affidavit) stating as follows (at [7]):
… The following correspondence has been addressed to [Mr Beidenhope]:
(a)letter and email dated 12 October 2012, providing [Mr Beidenhope] with a copy of the Family Court Order of 27 September 2012 setting out various trial directions made by the Court and providing to him an explanation of the same including the relevant dates of compliance;
(b)letter and email dated 5 November 2012, serving [Mr Beidenhope] with my client’s Amended Initiating Application and Affidavit of non-filing of Family Dispute Resolution Certificate, both having been filed on 26 October 2012;
(c)Email dated 9 November 2012, providing [Mr Beidenhope] with my client’s updated disclosure documents pursuant to the directions made by Registrar Coutts on 27 September 2012;
(d)Letter and email dated 12 November 2012, serving [Mr Beidenhope] with a copy of my earlier affidavit in preparation for the divorce hearing. This correspondence was also directed to Moszkowicz, Moszkowicz, Moszkowicz and Moszkowicz Advocaten the Dutch law firm who were retained by [Mr Beidenhope] to represent him in respect of the previous proceedings before the Court of [City 1] in the Netherlands;
(e)Letter and email dated 21 November 2012, serving [Mr Beidenhope] with affidavits of the expert valuers filed on my client’s behalf. A copy of this was also provided to Moszkowicz, Moszkowicz, Moszkowicz and Moszkowicz Advocate;
(f)Various correspondence was sent on 30 November 2012 namely;
(1)Correspondence advising [Mr Beidenhope] that a divorce Order had been made by the Honourable Justice Bell of the Family Court on 26 November 2012 pursuant to my client’s Application for Divorce;
(2)Correspondence informing [Mr Beidenhope] that we had received an ‘Advice of Delivery’ receipt, purporting to have been signed by him confirming that correspondence from our office was received by him at the address, [E Street, F Town], Netherlands. As I (sic) result, I informed [Mr Beidenhope] that all future correspondence from my office would only be sent to the Netherlands address (rather than an additional copy being provided to the Denmark address);
(3)Correspondence providing copies of further documents from my client by way of disclosure; and
(4)Correspondence providing [Mr Beidenhope] with unsealed copies of my client’s Court documents including an affidavit, updated financial statement, balance sheet, case information documents and an undertaking as to disclosure.
(g)Letter and email dated 10 December 2012 serving filed copies of my client’s Court documents, advising [Mr Beidenhope] of the outcome of the compliance mention before Registrar Coutts on 6 December 2012 and in particular informing him of the case management hearing before His Honour Justice Kent on 11 December 2012;
(h)Letter and email dated 17 December 2012 providing [Mr Beidenhope] with a copy of the sealed Order made by the Honourable Justice Kent on 11 December 2012;
(i)Letter and email dated 10 January 2013 further advising [Mr Beidenhope] of the outcome of the hearing His Honour Before (sic) Justice Kent on 11 December 2012 and informing [Mr Beidenhope] that my client will be seeking that the matter proceed on an undefended basis on 29 January 2013 and to explain to [Mr Beidenhope] the terms of Orders sought by my client and the effect of same.
(j)Letter and email dated 23 January 2013 providing [Mr Beidenhope] with a copy of the Written Submissions filed by my clients on 22 January 2013 in preparation for the hearing on 29 January 2013.
There is no evidence that the emails to which reference has been made, or any of them were returned by the wife’s solicitor’s internet service provider. Further, it is evident from the “Advice of Delivery” receipt that the Husband was receiving mail directed to the address the correspondence was sent to.
I am satisfied the Husband received the letters and communication referred to and thus has had ample opportunity to participate in these proceedings if he chose to so do. He is aware of the orders being sought against him and has chosen not to file any material in response nor to appear or cause a legal representative to appear on his behalf. I am therefore satisfied that the Wife’s application to proceed on an undefended basis ought be, and is, granted.

Parenting

In her Amended Initiating Application the Wife seeks parenting orders namely, sole parental responsibility for the children; that the children live with the Wife; that the children spend time with the Husband as agreed between the parties in writing; and that the children communicate with the Husband at any reasonable time in accordance with their wishes. As M has now attained his majority having turned 18 years of age on 10 April parenting orders may now only be made with respect to L but M will be included where the expression “the children” is used in these reasons.
Part VII of the Act (ss 60A to 70Q) provides the statutory framework in which the Court exercises its power to make parenting orders.
Section 60B of the Act sets out that the objects of Part VII are to ensure that the best interests of children are met and details how those objectives are achieved (s 60B(1)); and the principles which underlie those objects (s 60B(2)). Section 60B(1) provides:
(1) The objects of this Part are to ensure that the best interests of children are met by:
(a)ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and
(b)protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and
(c)ensuring that children receive adequate and proper parenting to help them achieve their full potential; and
(d)ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.
Section 60CA of the Act requires that, in deciding whether to make a particular parenting order in relation to a child, the Court must regard the best interests of the child as the paramount consideration.
Section 60CC of the Act identifies the “primary considerations” (s 60CC(2)) and the “additional considerations” (s 60CC(3)) the Court must consider in determining what is in the child’s best interests.
Section 65D of the Act provides the source of the Court’s power to make a “parenting order”. This section expressly provides that this power is subject to, inter alia, s61DA of the Act. Section 61DA(1) requires the Court to apply a presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child. The presumption does not apply in circumstances of abuse or family violence of the kind referred to in subsection (2) and further, the presumption may be rebutted by evidence that satisfies the Court that it would not be in the best interests of the child for the child’s parents to have equal shared parental responsibility. (s61DA(4) of the Act).
If the Court makes an order providing that a child’s parents are to have equal shared parental responsibility for the child then it must go on to consider whether it is in the bests interests of the child and reasonably practicable for the child to spend equal time with each of the parents, and if it is, to consider that order and, if not, the court must consider an order for substantial and significant time with each of the parents.[1]
[1] Section 65DAA.
It is both unnecessary and unproductive to deal seriatim with the s60CC considerations in this case. I find for reasons which follow that in L’s best interests the presumption of equal shared parental responsibility is rebutted in this case and therefore the consideration of equal, or significant and substantial, time does not arise. Even if these considerations did arise, the location of the parents, being Australia and the Netherlands, makes such an order clearly impracticable.
The Husband, apparently by his own election, has not seen the children nor had any communication with them in many years. The Wife was the primary carer of the children during the parties’ relationship. The children were 13 and 11 years of age when they last saw the Husband, some four and a half years ago. The Husband has not communicated with the children in any form nor made any attempt to send the children birthday or Christmas gifts since this time.
The Wife has been the sole carer for the children and has been effectively practicing sole parental responsibility for them since separation. The Husband has not sought to exercise any parental responsibility nor sought to participate in their lives at all, let alone meaningfully, over the years since separation.
It is clear that it would not be in the best interests of L for the parents to have equal shared parental responsibility in circumstances where the Husband has shown a clear intention not to participate in the children’s lives and has not sought to exercise his parental responsibility since separation. The Wife has had various issues with getting in contact with the Husband and seeking his cooperation where his consent has been needed at various times since separation. It is in the best interests of L for the Wife to be able to make decisions relating to her without this issue.
Further, M has now turned 18 and L is 15. L is at an age where she would be mature enough to decide for herself whether she wishes to seek a relationship with the Husband. The Wife’s proposed orders provide her with this opportunity.
It could not be said that L currently has a meaningful relationship with the Husband. The Husband has failed to participate in decision-making about the children, failed to spend time with the children and failed to communicate with the children in over four and a half years. The Husband stated in his affidavit filed on 22 September 2011 (at [9]):
…I left Australia in September 2008 and I have not returned to Australia since that time. I have no intention of returning to Australia in the near future.
I find that in all the circumstances the orders proposed by the Wife are in the best interests of L and I make those Orders with respect to L.

Property

The Wife seeks property orders the effect of which would be for her to retain what is equivalent to 80 per cent of the parties’ existing legal and equitable interests in property as known to the Wife. The Husband does not seek any orders for property; his response to the Wife’s initiating application merely sought that that application be dismissed.
The decision of the Full Court in Hickey & Hickey (2003) FLC 93-143 set out that the preferred approach to the determination of an application brought pursuant to s 79 involves four inter-related steps. First, I should make findings as to the identity and value of the property, liabilities and financial resources of the parties at the date of the hearing. Second, I should identify and assess the contributions of the parties within the meaning of ss 79(4)(a), (b) and (c) and determine the contribution-based entitlements of the parties which can be expressed as a percentage of the net value of the properties of the parties. Third, I should identify and assess the relevant matters referred to in s 79(4)(d), (e), (f) and (g) (“the other factors”), including, because of s 79(4)(e), the matters referred to in s 75(2) so far as they are relevant, and determine the adjustment, if any, that should be made to the contribution-based entitlements of the parties established at step two. Fourth, I should consider the effect of those findings and determinations and resolve what order is just and equitable in all the circumstances of the case (s 79(2)).
Recently, the High Court (French CJ, Hayne, Kiefel and Bell JJ) in Stanford & Stanford (2012) FLC 93-518 made it clear that the Court should first consider s 79(2) separately and be satisfied that in all the circumstances it is just and equitable to make a property settlement order. This is to be done by “identifying, according to ordinary common law and equitable principles, the existing legal and equitable interests of the parties in the property” and determining “whether, having regard to those existing interests, the court is satisfied that it is just and equitable to make a property settlement order”.[2]
[2] Stanford (supra) at [37].
In circumstances where the Husband has not appeared and has failed to adequately disclose his financial circumstances, as will be discussed, I have considered this “first step” by looking at the Wife’s estimated asset pool. Clearly the parties may have more existing legal and equitable interests than those identified by the Wife in the estimated pool, but by having regard to what is already in the asset pool and the circumstances of this case, I am satisfied that it is just and equitable to make a property settlement order.
The High Court in Stanford stated that this requirement is readily satisfied where the parties have separated voluntarily, explaining that:
42. … It will be just and equitable to make a property settlement order in such a case because there is not and will not thereafter be the common use of property by the husband and wife. No less importantly, the express and implicit assumptions that underpinned the existing property arrangements have been brought to an end by the voluntary severance of the mutuality of the marital relationship. That is, any express or implicit assumption that the parties may have made to the effect that existing arrangements of marital property interests were sufficient or appropriate during the continuance of their marital relationship is brought to an end with the ending of the marital relationship. And the assumption that any adjustment to those interests could be effected consensually as needed or desired is also brought to an end. Hence it will be just and equitable that the court make a property settlement order. What order, if any, should then be made is determined by applying s 79(4).
I have considered this requirement in circumstances were the parties had entered into a pre-nuptial agreement at the commencement of the marriage.
The parties signed the pre-nuptial agreement in 1994 prior to their marriage setting out the assets and liabilities each party had at the commencement of their marriage. The solicitor for the Wife submits in written submissions that this agreement is not a Binding Financial Agreement made pursuant to s 90B of the Act and not a pre-nuptial agreement recognised under Australian law.
Whilst the agreement is not binding on the parties in this jurisdiction, the Court can still have regard to it in making a determination under s 79. However, I find that the agreement is of little evidentiary value in circumstances where the Wife provides uncontested evidence that the parties acted inconsistently with the pre-nuptial agreement throughout the marriage.
The Wife provides a number of examples of the parties not complying with the agreement in her written submissions stating (at [6.13(f)]):
… By way of example, Article 5.1 [of the agreement] directs that the costs of the household, including the care and upbringings of the children, are to be paid in proportion from the income of each spouse. Further, Article 5.4 and Article 7 directs (sic) the reconciliation and reimbursement process that is to occur between the parties at the end of each calendar year in relation to the matrimonial expenses. These steps and mathematical reconciliation were never undertaken by the parties during the marriage.
While the Husband raised the existence of the pre-nuptial agreement in respect of his application to have the proceedings stayed, this was on the basis that the agreement provided for disputes to be determined by a court in the Netherlands[3] and the Husband has not sought to enforce any of the terms of the pre-nuptial agreement within this Court. Forrest J referred to examples of the parties acting inconsistently with the agreement in his judgment to refuse the stay despite the pre-nuptial agreement (at [33]):
…
(iv) As counsel for the wife correctly submitted, the parties themselves apparently acted either inconsistently with, or in default of, their obligations under the pre-nuptial agreement during their relationship in as much as:-
(a)There is no evidence of them being responsible for their children’s expenses in a manner strictly proportional to their income;
(b)There is no evidence of any conciliation or “making good” between them of individual income and joint expense.
(v) There is absolutely no evidence that when the parties moved to take up full-time residence as a family in Australia in 2002 that consideration was given to the ongoing relevance and applicability of the pre-nuptial agreement signed back in 1994 in the Netherlands or that their move was made and their property jointly acquired in Australia with cognisance of, and commitment to, any ongoing binding effect of the agreement.
[3] Husband’s affidavit filed 20 October 2010 at [4].
I find that it is just and equitable to make an order under s 79 of the Act despite the existence of a pre-nuptial agreement. This is because the parties have clearly demonstrated by their conduct an intention not to act in accordance with the agreement throughout their marriage and therefore, upon the end of the relationship, it would not be just and equitable to enforce its provisions now.
While the Husband historically appeared to be not in favour of this Court making orders for property settlement, it is evident from both parties filing applications for property orders, that the parties both contend that by reasons of the breakdown of their marriage, it is just and equitable for their interests and rights in property to be altered, whether that occurs in Australia or the Netherlands.
I therefore now turn to the other factors that are required to be considered in determining what orders should be made. I am of the view that the steps outlined in Hickey are still a useful approach in applying s 79 and intend to follow them here.

Identification and Valuation of Assets, Liabilities and Financial Resources

The Wife has provided an estimated property pool based on her financial circumstances and the limited information she has received from the Husband. The Wife has had to speculate about the values of certain assets owned by the Husband and about the existence of other assets in the Husband’s possession due to the Husband’s failure to disclose such information.
It is trite that the jurisdiction to alter the property interests of the parties and to make orders that are just and equitable in all the circumstances heavily depends upon the parties making full and frank disclosure of all financial affairs.
Notably, consistent with that, in this jurisdiction parties are obliged not just to provide discovery of documents but are required to disclose all relevant information. This highlights the importance placed upon the parties and the court having all information relevant to making property orders. When such disclosure does not occur (as is the case here) it is equally trite that the Court may take a robust approach.
In Dixon & Dixon [1999] FamCA 426, the Full Court (Nicholson CJ, Lindenmayer and O’Ryan JJ) discussed the need for full and frank disclosure stating (at [44]):
In a number of authorities the Family Court has consistently stressed the importance of the necessity for a complete and exhaustive disclosure of financial circumstances in proceedings in which such matters are relevant. The Full Court in Oriolo v Oriolo (1985) FLC 91-653, and in Black v Kellner (1992) FLC 92-287, referred with approval to the remarks of Smithers J in Briese v Briese (1986) FLC 91-713 where he said, after referring to the decision of the House of Lords in Jenkins v Livesy (1985) A.C. 424:
Although the case relates to quite different circumstances, I believe that the conclusion of the House of Lords in the case of Livesy v Jenkins (1985) 1 All ER 106 is apposite, namely that in financial proceedings between spouses each party must make a full and frank disclosure of all material facts. In that case it was made clear that full and frank disclosure was required as a matter of principle in the light of the fact that it was the duty of the Court, taking into account a number of designated criteria, to make a decision which basically involves the exercise of discretion. This is quite different from common law litigation between strangers, in which such a general duty does not exist, and obligations would only exist in so far as statute or court rules required.
In my view, it is fundamental to the whole operation of the Family Law Act in financial cases, that there is an obligation of the nature to which I have referred. Livesy v Jenkins makes it clear that mere compliance with the rules of court or practice directions does not alter the basic principle of the need for full and frank disclosure by the parties.
In the case of Weir (1993) FLC 92-338, the Full Court (Nicholson CJ, Strauss and Nygh JJ) commented on the approach the Court should take in circumstances of non-disclosure by stating (at 79,593 – 79,594):
This Court has pointed out in a line of cases leading up to the recent decision of the Full Court in Black v Kellner (1992) FLC 92-287, that it is the duty of a party involved in property proceedings of this jurisdiction to make a full disclosure of their financial affairs. See also Giunti and Giunt (1986) FLC 91-759 and Mezzacappa v Mezzacappa (1987) FLC 91-853.
…
It seems to us that once it has been established that there has been deliberate non-disclosure, which follows from His Honour’s findings in this case, then the court should not be unduly cautious about making findings in favour of the innocent party. To do otherwise might be thought to provide a charter for fraud in proceedings of this nature.
…
We appreciate that this is something of a broad brush approach, but, as we have said, where there is clear evidence of non-disclosure as there was here, the Court should not be unduly cautious about making findings in favour of the other party.
The Wife submits that the Husband has, notwithstanding repeated requests, failed to provide full and frank disclosure of his financial circumstances. The written submissions on behalf of the Wife record that the Husband has only provided limited disclosure on one occasion during these proceedings being in December 2011.
In particular the Wife states that in the limited documents provided, documents recording the details of the Husband’s assets and liabilities are not in English; have not been translated despite the Wife’s repeated requests; and that due to the costs associated with the same, it is not commercially feasible or possible for the Wife to translate such documents herself. Further, the Wife submits the Husband has provided limited, if any, source documents from banks in relation to his finances, rather he has provided spreadsheets apparently prepared by the Husband.
The Husband filed a Financial Statement on 25 August 2010 but has filed no documentation relating to his financial circumstances since. The Husband’s most recent affidavit was filed on 15 December 2011 but did not contain any information about the Husband’s financial circumstances.
The Wife’s property pool estimate is annexed to the Wife’s written submissions and records:

Ownership	Description		Wife’s estimated value		Source of finding
Assets
Joint	[B Street, C Town]		$620,000		As per affidavit of [Mr O], [P Valuers] filed 21 November 2012.
Wife	Furniture		$9,105.00		As per affidavit of [Mr N], [Q Appraisals] filed 21 November 2012.
Husband	Furniture in Netherlands		Not known
Husband	[Motor vehicle 1] ([registration number])		$2,200.00		As per affidavit of [Mr N], [Q Appraisals] filed 21 November 2012.
Husband	[Motor vehicle 3] ([registration number]) – located in the Netherlands		Not known
Unregistered	[Motor vehicle 2] ([registration number])		$1,300.00		As per affidavit of [Mr N], [Q Appraisals] filed 21 November 2012.
Husband	[Box trailer] ([registration number])		$500.00		As per affidavit of [Mr N], [Q Appraisals] filed 21 November 2012.
Joint	ING Bank Accounts held on trust for the children ([…55] and […33])		Exclude
Joint	ING Direct My Savings Maximiser Account ([…58])		E$28.79		Financial statement of wife filed 6 December 2012.
Joint	ANZ Access Advantage Cheque Account ([…15])		E$208.27		Financial statement of wife filed 6 December 2012.
Wife	ANZ Access Advantage Account ([…74])		Nominal		Financial statement of wife filed 6 December 2012.
Wife	ING Direct My Savings Maximiser Account ([…61])		E$87.49		Financial statement of wife filed 6 December 2012.
Husband	ING Bank Accounts ([…65]), ([…13]), ([…86])		Not known
Husband	Other Australian and overseas bank accounts		Not known
Husband	Husband’s interest in [R] annuity payout		Not less than E$128,774.20		The Husband has produced a document that appears to be dated 23 September 2005. The document however is in Dutch and is therefore illegible.
Husband	[G] Pty Ltd CAN …(deregistered)		Not known
Husband	[H] Pty Ltd CAN … (deregistered)		Not known
Total	E$762,203.75 + not knowns
ADDBACKS
Husband and his sister	Husband’s interest in real property located at [E Street, F Town, the Netherlands]		E$225,000
Total	E$225,000
LIABILITIES
Wife	ANZ Platinum credit card ([…64])		E$41,832.90		Financial statement of wife filed 6 December 2012.
Husband	Credit card liabilities in Australia, the Netherlands and Indonesia		Exclude
Wife	Debt owing to [Mr D]		E$192,000+		Financial statement of wife filed 6 December 2012.
Husband	Debt owing to [Ms K]		Exclude
Husband	Debt owing to Husband’s great uncle		Exclude
Husband	Debt owing in respect of personal loan		Exclude
Total	E$233,832.90+
SUPERANNUATION
Member	Name of Fund	Type of interest		Wife’s estimated value
Wife	Australian Super	Accumulation (No. […82])		E$20,177.08		Financial statement of wife filed 6 December 2012
Wife	[Super Fund 1]	Accumulation (No. […96])		E$10,973		Financial statement of wife filed 6 December 2012.
Wife	[Super Fund 2]	Accumulation(No. […46] and No. […06])		E$50,002.16		Financial statement of wife filed 6 December 2012.
Wife	[Super Fund 3]	Accumulation (No. […48])		E$17,020		Financial statement of wife filed 6 December 2012.
Husband	[Super Fund 4]	Preserved (Member No. […26])		E$266.09		Financial Statement of husband filed 25 August 2010.
Husband	[Super Fund 5]	Not Known (Member No. […46])		E$229.64		Financial Statement of husband filed 25 August 2010.
Husband	[Super Fund 6]	Not known		Not known		The husband has produced a document that appears to be dated 1 January 2011. The document however is in Dutch and is therefore illegible.
Husband	[Super Fund 7]	Member no. […89]		Not known		The husband has produced a document that appears to be dated 1 January 2011. The document however is in Dutch and is therefore illegible.
Husband	[Super Fund 8] (pension capital)	Not known		Not known
Husband	[Super Fund 9]	Not known		Not known
Husband	[J] Pty Ltd	Medical and liability insurance (No. […96])		Not known
Total	E$98,667.97+ not knowns
Total		$852,038.82

I am satisfied the Wife’s estimated values ascribed to various assets of the Husband have been determined using the information available to the Wife and that they should not be discounted in circumstances where the Husband has not provided any up to date information nor made any contentions against their inclusion. Otherwise the Wife relies upon expert valuation evidence which I accept.
I find that the Wife has a legitimate basis for speculation as to the additional assets of the Husband based on the following:
a)The Husband works in a professional occupation and there is nothing to indicate the Husband has not continued to work in similar roles and in a similar capacity to that undertaken by him during the marriage. Therefore the Wife speculates the Husband has and is potentially receiving an income of not less than $150,000 per annum or $600,000 gross in total since separation, on a conservative approach.
b)The Husband has been residing in the Netherlands since 2008 and it is not unreasonable to assume the Husband has acquired interests in other property in the Netherlands or elsewhere in circumstances where the Husband has not been contributing to the acquisition, conservation and improvement of property in Australia nor has he been paying child support or maintenance to the Wife since separation.
c)The Husband has funded proceedings both in Australia and in the Netherlands and retained legal representation in both jurisdictions and it appears that he has not needed to borrow to do so.
d)Based on the limited documentation that has been made available to the Wife, the Husband is likely to have pensions and superannuation entitlements that have not been accounted for in the property pool as the Husband has been employed by international companies earning a significant income for the majority of the marriage, and it is likely that he has received and currently has significant entitlements to superannuation and pensions in overseas funds.
e)The Wife also understands that the Husband may have or is about to receive an inheritance as the Husband’s mother, if she is alive, would be 96 years of age. The Wife has concerns that the receipt of an inheritance may go towards explaining why the Husband ceased participating in these proceedings in March 2012 having previously strenuously litigated against the Wife in two jurisdictions.
The above discussions of the authorities concerning full and frank disclosure are pertinent to the current proceedings. I find that it is more likely than not that the Husband has assets and financial resources he has not disclosed. Fortifying that conclusion is the fact that, notwithstanding the Husband has had notice of these proceedings and the orders sought by the Wife, the Husband has elected not to participate. It is reasonable to infer that if the Husband had less assets and more liabilities than that contended for by the Wife, it would be in his interests to disclose his more limited financial situation and agitate for different orders. The fact that the Husband has chosen not to do so, and not to challenge the Wife’s contentions, makes it reasonable to infer that the current estimations of the Wife are modest.
In relation to the debts listed as owing by the Husband, the Wife outlines in her written submissions that these personal debts were raised by the Husband previously but the existence of such debts is disputed and they should be excluded from the property pool. In circumstances where it has not been previously suggested that the Husband has had to borrow any money to pursue any litigation, I find it is unlikely that such debts still exist, if they ever did, and it is reasonable to exclude them in circumstances where it is likely there are more assets owned by the Husband that have not been included in the property pool due to non-disclosure.
In particular, in relation to the debt said to be owed to Ms K (the Father’s mother), the Father deposes in his affidavit on 20 January 2011 that he is no longer in debt to his Mother.
The Wife seeks to include her personal loan to Mr D (her father) as a liability in the pool to the considered. In relation to the personal loan, the Wife deposes that this money was received to fund the Wife’s expenses, including legal fees, the children’s living expenses and the children’s education costs. Whilst the Court has previously indicated that it might determine not to take into account unsecured liabilities where it is unlikely they will be enforced or repaid (Biltoft & Biltoft (1995) FLC 92-611), particularly in cases of a parent making a loan to a child (In the Marriage of Af Petersens (1981) FLC 91-095), I am satisfied it is appropriate to take into account the Wife’s liability in circumstances where the inclusion of it has gone unchallenged by the Husband.

Add-backs

The Wife also seeks that the Husband’s previous one-half interest in real property located in the Netherlands of $225,000 be notionally added back into the property pool for the purpose of properly accessing contribution to the existing property.
The Wife submits that it is appropriate to notionally add this back to the property pool as it falls within the categories outlined in Omacini and Omacini (2005) FLC 93-218.
In Omacini, the Full Court (Holden, Warnick & Le Poer Trench JJ) stated that it may be appropriate to add back to the pool:
30.      …
(c) In the circumstances outlined by Baker J in Kowaliw and Kowaliw (1981) FLC 91-092 at 76, 644:
As a statement of general principle, I am firmly of the view that financial losses incurred by parties or either of them in the course of a marriage whether such losses result from a joint or several liability, should be shared by them (although not necessarily equally) except in the following circumstances:
(a)    where one of the parties has embarked upon a course of conduct designed to reduce or minimise the effective value or worth of matrimonial assets, or
(b)    where one of the parties has acted recklessly, negligently or wantonly with matrimonial assets, the overall effect of which has reduced or minimised their value.
Conduct of the kind referred to in para. (a) and (b) above having economic consequences is clearly in my view relevant under sec. 75(2)(o) to application for settlement of property institute under the provisions of sec. 79
31. As the Full Court said in Brown and Green (1999) FLC 92-873 at 86,360:
44. We agree with her Honour that the principles stated by Baker J in Kowaliw certainly do not constitute any form of fixed code. They are no more than guidelines for use in the exercise of the discretionary jurisdiction conferred by s 79 of the Family Law Act 1975. Nevertheless, they have over the considerable period of time since they were enunciated, become a well accepted guideline in this jurisdiction – a guideline the use of which assists in the achievement of the important goal of consistency within the jurisdiction.
The Wife submits that the Husband gifted his one-half interest in the subject property to his sister who is now the sole owner of the property and such conduct falls within the category identified in Omacini.
The Husband deposes in his affidavit filed 20 January 2011 that he had inherited the one-half interest from his grandparents in July 1982 before the commencement of the parties’ relationship, and therefore, to the Husband’s knowledge, the property remained out of the relationship according to the pre-nuptial agreement. The Husband further deposes that he transferred his interest in the property to his mother to clear the debt he owed to his mother and his sister.
As already found, the pre-nuptial agreement is not binding in this jurisdiction and little weight is attached to it. While the Husband’s reasons do indicate he may not have acted “recklessly, negligently or wantonly” with the matrimonial assets given that (a) he believed the asset was not part of the matrimonial pool and (b) he was transferring the interest to pay off a debt owed, the Husband has not appeared at the hearing to provide further evidence or to be cross-examined on his affidavit, and therefore little weight can be attached to his evidence.
The property would have fallen within property available for adjustment had the Husband’s share not been transferred, regardless of the pre-nuptial agreement, and there is no evidence to suggest that the debt the Husband owed to the mother or the sister was a secured debt such that it would have been necessary to repay it.
Further, in circumstances of the Husband’s non-disclosure, as indicated earlier, I am entitled to take a robust approach and I therefore accept the evidence of the Wife in this regard, and determine that the one-half interest in the property be notionally added back to the property pool to be considered for the purpose of adjusting the parties’ interests in existing property.

Contributions

The parties were married for over 16 years and the marriage produced two children, one now an adult.
The submissions on behalf of the Wife record that the “initial contributions of the parties were equal as both had nominal assets at the commencement of cohabitation.” The Wife deposes in her affidavit filed 6 December 2012 that the Husband contributed no assets of significant value at the commencement of the relationship.
The Husband deposes in his affidavit filed on 20 January 2011 that he brought into the relationship his half interest in the property inherited from his grandparents. However, as already discussed, the Husband has not been tested on this evidence and the Husband has previously also deposed that such half interest was never considered part of the matrimonial property. The Wife attaches to her affidavit filed 6 December 2012 the schedule to the pre-nuptial agreement between the parties translated into English which lists the assets brought into the relationship by each party and does not include any significant assets.
The Husband deposes in his affidavit filed on 20 January 2011 that he also brought into the relationship savings and an inheritance from a great uncle.
I find that the parties’ initial financial contributions can be treated as equal where the parties were in a relationship for over 18 years and the Husband has not provided evidence of the assets he brought into the relationship and the use of those assets during the marriage except for the statements in his affidavit material upon which I am unable to place weight given that none of the Husband’s evidence can be tested given his non-appearance.

The Wife does not dispute that the Husband was the primary income earner during the early stages of the relationship but does submit that there were periods of unemployment on the Husband’s part, upon moving to Australia particularly, and during those times the Wife was the sole income provider. The Wife deposes to some periods of her unemployment as a result of relocations due to the Husband’s employment and as a result of maternity leave.
In relation to the parties’ real property, they purchased an apartment in the Netherlands, in 1994 for 130,000 guilders which was sold five years later for 245,000 guilders. The proceeds of this sale, along with an inheritance from the Wife’s grandmother and loans from both parties’ parents, contributed to the purchase of the former matrimonial home at C Town in 2002. The Husband deposes that he also used his sister’s share of the half share of inheritance to purchase the C Town property.
The Wife submits that save for a small sum of approximately $5000, the Husband did not apply any of his income, from 2002 to separation in 2008 towards the Australian located assets or the family expenses and the Wife was solely responsible for these costs.
I am satisfied that the Wife has been the primary carer of the two children of the relationship throughout the relationship and over the long period now of separation and her contributions as a home-maker parent and carer for the family carry very significant weight.
Since separation the Wife has been employed and been solely responsible for maintaining the Australian located assets and meeting her daily expenses and those of the two children. The Husband has made no contributions to maintaining those assets or paying for any of the children’s expenses. The children were only about 13 years and 11 years of age respectively when the parties separated. Obviously, their expenses over the period since separation have been substantial, a burden met entirely by the Wife.
The Wife has made significant post-separation contributions to the care of the children. As earlier noted, the Husband has not spent any time with the children since separation leaving the Wife the children’s sole carer. The children are now 18 and 15, the Wife has had 100 per cent parental responsibility for the children since separation and has cared for the children, on her own, for the past four and a half years through the children’s difficult and demanding teenage years. This contribution resonates especially compared to the limited evidence of any contributions on the part of the Husband. While the Wife is happy to concede that the parties’ contributions during the marriage were equal, the Wife submits that the significant financial and non-financial contributions made by the Wife since separation warrant an adjustment in the range of 15-20 per cent in favour of the Wife. I accept that submission.
I find that the Wife has made overwhelming contributions to the marriage and am satisfied that an assessment of contribution based entitlements of 60 per cent/40 per cent in favour of the Wife is proper, just and equitable.

Section 75(2) Factors

The Wife contends that the factors outlined in s 75(2) warrant an adjustment in her favour of 20 per cent.
The Wife is aged 51 years; the Husband is 57.
The Wife is currently employed with S University with a gross annual salary of approximately $90,323.81. The Wife submits that she is on an annual contract and there is no guarantee this contract will be extended when it expires in July 2013.
The Husband has not deposed to his current employment status and has failed to provide the Wife or the Court with any evidence of his current employment and income. The Wife’s written submissions contain that “the wife understands that the husband remains engaged in full time employment with [T Pty Ltd in a professional capacity]”. As already noted, the Husband has failed to make disclosure of his financial circumstances so that what he has earned over the period since separation and his current earnings are matters than can only be speculated upon.
During the marriage, the Husband was working as a professional earning not less than $150,000 per annum. I accept the Wife’s evidence on this and accept this is a conservative estimate given the demand for professionals in his field and the Husband’s experience in this field.
The Wife’s earning capacity is much less than the Husband’s and the income earning disparity between the parties is at least $60,000 (representing 7 per cent of the net property pool).
Further, the Wife remains the sole carer for the two children and will be solely responsible for their financial needs in the future.
As outlined above, the Wife submits that the Husband has assets, superannuation and pension entitlements available to him that have not been valued nor has the value of those been included in the property pool. I accept that this is most likely to be the case.
I accept the Wife’s submissions that the Court should make a substantial adjustment in favour of the Wife for future needs to account for the parties’ income disparity, the parenting arrangements and the Husband’s lack of financial commitments against his likely substantial financial resources.
In the circumstances, I accept that the s 75(2) factors warrant further adjustment of 15 per cent in favour of the Wife.

Just and Equitable Requirement

The Wife seeks an order that the net matrimonial assets as known to her and as already outlined be divided so as to effect a distribution of property of 80 per cent to the Wife and 20 per cent to the Husband. I am satisfied it is just and equitable for such adjustment to the property as known to be made to achieve that outcome.
The effect of the specific orders sought by the Wife would see her receive the whole of the parties’ property located in Australia, together with a cash payment from the Husband of $183,861.56. I am satisfied in the circumstances that this is a just and equitable outcome.
The Wife also seeks a further cash payment from the Husband of $20,124.94 on account of an indemnity costs order made by the Full Court on 30 May 2012. In the circumstances such provision ought be made.

Default Orders Sought

The Wife seeks that in the event the Husband defaults on these orders by failing to make the cash payments sought, then certain provisions shall operate to remedy such default. Whilst in the circumstances already described I understand and am sympathetic to the Wife’s position I am not persuaded these orders can be made.
First, the Wife seeks that the provisions under s 90MT of the Act will operate for a superannuation split of the Husband’s superannuation interests in the superannuation funds Super Fund 4 and Super Fund 5.
I am not prepared to make such an order, which seeks to bind the trustees of Super Fund 4 and Super Fund 5, where there is no evidence before me that the trustees have been served with the application and accorded procedural fairness in terms of being given an opportunity to be heard. Such procedural fairness is required pursuant to s 90MZD of the Act.
Further there is no evidence before me that there has been any valuation of the Husband’s superannuation interests in accordance with the Family Law (Superannuation) Regulations 2001(Cth) required pursuant to s 90MT(2) of the Act.
Secondly, the Wife seeks that, following the superannuation provisions coming into effect and in the event there is a shortfall of the cash payments owing to the Wife, a garnishee order become operative to pay the outstanding debt.
The Wife seeks to make all earnings of the Husband, being wages or salary and fees, drawings, bonuses, commission, overtime pay, pension, annuity, monies payable in lieu of leave or retirement benefits, subject to a garnishment order along with any tax refund or rebate payable to the Husband by the Australian Taxation Office.
The garnishee order sought by the Wife does not specify a third party to be the subject of the order, except for generally the Australian Taxation Office in relation to “any tax refund or rebate”. The order provides that the Husband give written notice to the Wife and the Court upon the Husband commencing new employment, commencing a new business, or becoming a shareholder in a company or a partner in any partnership in Australia. The Wife then seeks to serve a copy of the garnishment order on the Husband’s employer or any business, company or trust in which the Husband is involved. A garnishee order applies only to debts that are payable by a third party to the Husband. There is no evidence before me to show that the order sought relates to any debt currently owed to the Husband at the present time; rather the orders seeks to cover future debts that may arise. Further, before making a garnishment order of wages, evidence would need to be put before the Court relating to the Husband’s financial circumstances and whether the Husband would have the capacity to meet the payments through wages taking into account his ordinary living expenses.
I do not consider there to be enough evidence before me to make this order in circumstances where there is no identified third party or specified debt.
I can well understand that in the circumstances of this case the Wife and her legal representatives seek to achieve finality and are pessimistic about the prospect of the Husband complying with these orders. However, default is yet to occur.
The law presumes people will comply with court orders. If the Husband defaults on the orders, the Wife will have an opportunity to bring an application to seek enforcement but until that occurs I do not propose to make any default orders.

Child Support

The Wife seeks a departure order pursuant to s 117 of the Child Support (Assessment) Act 1988 (Cth) (“the CSA Act”) from “any” administrative assessment payable by the Husband to be varied to $2,000 (net of tax) per month per child or $461 (net of tax) per week per child, until the child completes his or her secondary education or attains the age of eighteen years of age, whichever is later.
The Wife does not currently have an assessment from the Child Support Agency and it is her evidence that there has never been an assessment. The Wife states this is because the Husband is living overseas and earning income overseas and therefore such assessment would not be binding or enforceable.
There cannot be a departure order pursuant to s 117 of the CSA Act without an administrative assessment. The effect of the section is that an application to depart from an administrative assessment requires that there is an assessment in existence. Therefore, where no assessment has ever been made, the application as formulated under s 117 must be dismissed.

Costs

I am satisfied that the Husband’s abject failure to make full and true disclosure, and the consequent additional inconvenience and expense to the Wife provides circumstances justifying an order for costs in favour of the Wife within the meaning of s 117(2) of the Act.
Those circumstances also resonate with several of the matters identified in s 117(2A) in particular sub-paragraphs (c), (d) and (g). The Husband’s failure to disclose and failure to participate in the proceedings made it necessary for the Wife to seek and pursue formal proceedings and limited opportunity to obtain a negotiated outcome or even to make offers under the Family Law Rules 2004 (Cth).
I am satisfied even on the limited information available that it is more likely than not that the respective financial circumstances of the parties, including those of the Husband, permit him to meet a costs order and justify the Wife having the benefit of such an order.
I am satisfied that the circumstances here as already referred to justify an order for costs on an indemnity basis having regard to the requirements for costs to be ordered on that basis as established by authorities such as Munday & Bowman (1997) FLC 92-784; Colgate-Palmolive Co v Cussons Pty Ltd (1993) 46 FCR 225; Fountain Selected Meats (Sales) Pty Ltd v International Produce Merchants Pty Ltd (1998) 81 ALR 397; Tetijo Holdings Pty Ltd v Keeprite Australia Pty Ltd [1991] FCA 187 (3 May 1991).
I therefore make the Orders as set out at the commencement of these reasons.

I certify that the preceding one hundred and sixteen (116) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Kent delivered on 17 April 2013.

Associate:

Date: 17 April 2013

[2013] FamCA 243

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Fiduciary Duty