Catlin & Catlin - [2025] FedCFamC1F 36

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Catlin & Catlin [2025] FedCFamC1F 36

File number(s): ADC 748 of 2014

Judgment of: BERMAN J

Date of judgment: 7 February 2025

Catchwords: FAMILY LAW – ENFORCEMENT – Where the wife seeks a declaration to enforce various paragraphs of a final Consent Order made in 2016 – Where the order provided that the husband pay the wife 60% of WIP received from the husband’s business – Where the wife contends the husband has collected at least $1.3 million in WIP – Where the husband asserts the order provides for a 60% payment of a reconciliation adjustment – Where there has been no reconciliation adjustment – Where the husband asserts the payment obligation has not crystalised – Where the Court finds that the Consent Order does not reference a “reconciliation” or “adjustment” payment – Where the wife seeks a declaration that she be entitled to a sum certain –Consideration of calculation of the WIP received by the husband – Where the husband has failed to provide requisite disclosure – Orders for the husband to pay the wife a sum certain.

Legislation:
Family Law Act 1975 (Cth) ss 81, 79, 105, 114

Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) rr 6.01, 6.03, 6.06, 10.13, 11.07, 11.09

Family Law Rules 2004 (Cth) rr 1.04, 1.08

Cases cited:
Australian Competition and Consumer Commission v Adata (Vic) Pty Ltd (No 3) [2015] FCA 583

Catlin & Catlin [2017] FamCA 818

Catlin & Catlin [2018] FamCA 235

Edmunds-Jones Pty Ltd v Australia Women’s Hockey Association Inc [1999] NSWSC 1014

Harris v Calladine [1991] HCA 9

I limited & Chester & Ors (2010) FLC 93-456

Neame v Neame Trs [1956] SLT 57

Re McGorm; Ex parte Co-operative Building Society of South Australia [1989] FCA 87

Weir & Weir (1993) FLC 92-338

Division: Division 1 First Instance

Number of paragraphs: 180

Date of hearing: 24-25 July & 9 and 11 December 2024

Place: Adelaide

Counsel for the Applicant: Mr Bullock

Solicitor for the Applicant: Howe Jenkin

Counsel for the Respondent: Mr Ower KC together with Ms Betro

Solicitor for the Respondent: 1878 Elix Lawyers
ORDERS

ADC 748 of 2014

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)

BETWEEN:
MS CATLIN

Applicant

AND:
MR CATLIN

Respondent

ORDER MADE BY:

BERMAN J

DATE OF ORDER:

7 FEBRUARY 2025

THE COURT ORDERS THAT:
1.There be a declaration that Mr Catlin (“the respondent”) is liable to pay Ms Catlin (“the applicant”) the sum of SEVEN HUNDRED AND TWENTY FOUR THOUSAND FOUR HUNDRED AND TWENTY SIX DOLLARS AND FORTY NINE CENTS ($724,426.49).
2.There be a declaration that the applicant’s entitlement in the Superannuation Fund 1 is fixed in the sum of ONE HUNDRED AND THIRTY THOUSAND SIX HUNDRED AND TWENTY THREE DOLLARS ($130,623) inclusive of her member balance.
3.Pursuant to r 6.06 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) (“the Family Law Rules”) the parties do each file a Financial Statement within twenty-eight (28) days of the date of this order.
4.The Enforcement Application filed 11 July 2023 be listed for further directions at 9.30 am on 3 March 2025.
5.The Initiating Application filed 22 August 2024 be dismissed.

Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Part XIVB of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish an account of proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under a pseudonym has been approved pursuant to subsection 114Q(2) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
BERMAN J
GLOSSARY OF TERMS
·Ms Catlin – the applicant
·Mr Catlin – the respondent
·O Pty Ltd– the applicant is a director of O Pty Ltd.
·P Pty Ltd– Mr Q is a director of P Pty Ltd.
·R Pty Ltd– Mr T is a director of R Pty Ltd.
·S Pty Ltd– the applicant in his own capacity and as a director of O Pty Ltd, Mr Q in his own capacity and as a director of P Pty Ltd and Mr T in his own capacity and as a director of R Pty Ltd, formed the S Partnership.
·K Pty Ltd / K2 Pty Ltd is the trustee company for the Catlin Superannuation Fund (“the fund”)
·F Street, Suburb G – (“the Suburb G property”)
·U Street, Suburb V being land held by either K Pty Ltd or K2 Pty Ltd as trustee for the fund (“the Suburb V property”).

INTRODUCTION

The parties entered into a final Consent Minute of Order for property settlement on 22 July 2016 (“the final orders”).
By Enforcement Application dated 11 July 2023, the applicant seeks declarations and auxiliary orders as to two components of the final orders summarised as follows:
(1)The applicant is entitled to the payment by the respondent pursuant to paragraph 17 of the final orders calculated in the sum of $724,426.49; and
(2)The applicant’s entitlement in the fund inclusive of her member entitlement as at 30 June 2018 be fixed in the sum of $130,623 (plus any applicable interest) pursuant to paragraph 36(1) of the final orders.
In addition, the applicant seeks default interest pursuant to s 117B(2) of the Family Law Act 1975 (Cth) (“the Act”) from a date being either in 2018 when the respondent is alleged to have ceased providing relevant ASIC documents to the applicant, or in 2020 when the respondent denied the applicant access to bank accounts relevant to the disclosure of the Work In Progress (“WIP”) realisation.
By Response filed 22 December 2023, the respondent seeks that the Enforcement Application be dismissed.
The Enforcement Application was initially listed for hearing before me on 24 and 25 July 2024 however, for reasons set out herein, it was also heard on 9 and 11 December 2024.
In anticipation of the hearing, the respondent filed a further Application in a Proceeding on 29 May 2024 wherein he sought the following orders:-
3.Pursuant to r 10.11(1)(c) of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (“the Rules”), the Enforcement Application dated 6 July 2023 be summarily dismissed.
4.        In the alternative to paragraph 3 herein:
4.1Pursuant to r 10.11(1)(b) of the Rules, paragraph 3.1 of the Applicant’s Enforcement Application dated [11] July 2023 be listed for interim defended hearing.
4.1.1In the event this Honourable Court determines that the Respondent has an obligation to pay money to the Applicant then:
(a)The Respondent do pay to the Applicant the amount payable (“the Settlement Sum”) into a bank account to be nominated by the Applicant in writing within 14 days, as follows:
(i)In the event the Settlement Sum is less than $5,000 within 45 days.
(ii)In the event the Settlement Sum is between $5,000 and $20,000 within 60 days.
(iii)In the event the Settlement Sum is more than $20,000 within 120 days.
4.1.2In the event this Honourable Court determines that the respondent has no obligation to pay money to the applicant then:
(a)The enforcement application dated 6 July 2023 be dismissed.
(b)the applicant do pay the respondent’s costs of and incidental to these proceedings on an indemnity basis.
A Consent Order was made on 31 May 2024 that there be a separate hearing and decision on the relief sought in paragraphs 3.1 and 13 to 16 of the applicant’s Enforcement Application.
On the first day of the hearing, the applicant was called to give evidence but was not cross examined. The respondent gave evidence and was cross examined over two days.
The focus of the respondent’s evidence was on the terms and conditions of a Heads of Agreement document between the respondent, Mr Q and Mr T in respect of the winding up of the S Partnership and the reconciliation of each party’s respective WIP account.
As will be discussed, paragraph 17 of the final orders refers to clause 10 of the Heads of Agreement which sets out the method and manner by which the S Partnership accounts are to be reconciled initially in December 2016 and then in April 2017 with the accounts to be further reconciled bi-annually.
The respondent’s argument in support of the primary order sought by him that the Enforcement Application be dismissed is at least in part based upon the following contentions set out in his affidavit filed 27 October 2023:
17.Although I reported quarterly with respect to collection of the old [S Partnership] WIP I did not receive any corresponding quarterly reports from or on behalf of my old [S Partners] as to their collections.
18.There has been no reconciliation agreed for the purposes of clause 10 of the Heads of Agreement.
19.I have received no payment pursuant to clause 10 of the Heads of Agreement.
…
23.[In] August 2019 I engaged the accounting firm [W Financial Services] to assist me to perform the reconciliation required under clause 10 of the Heads of Agreement. This exercise was performed in circumstances where I had not been provided with details of the collections made on behalf of the other members of the Old [S Partnership]. Instead, I referred [W Financial Services] to the financial statements prepared by [X Financial Services] and [Y Financial Services] which set out, in broad terms, the income and WIP balances of the Old [S Partnership].
24.[W Financial Services] confirmed that as at 30 June 2018 there would be no adjustment, or payment, to me under clause 10 of the Heads of Agreement but rather a small payment was required to be made by me to the Old [S Partnership]. The confirmation from [W Financial Services] was oral and has not been confirmed in writing as I am still waiting for the information and documents necessary to confirm the position in relation to clause 10 of the Heads of Agreement.
…
27.As I have not been able to obtain the financial statements for the financial years ending 30 June 2020, 2021, 2022 and 2023 or a detailed breakdown of amount received on behalf of the other Partners of the Old [S Partnership] I have not been in a position to confirm the adjustment under clause 10 of the Heads of Agreement.
The further contention of the respondent at paragraph 28 of the affidavit is that he has not received sufficient documents or information from the other partners of S Pty Ltd partnership that would enable a final reconciliation to be completed.
The respondent asserts that whilst a copy of the document is not able to be found, his position is that the applicant would have all necessary authority to approach Mr Q and Mr T to seek information or documents to give effect to paragraph 19 of the final orders, being:
19.That the [respondent] do authorise and keep authorised the [applicant] to make all enquiries and to view all documents and records (including any bank account into which monies are paid) associated with or related to [S Pty Ltd] and to speak to the other Partners or their representative in [S Pty Ltd].
During the respondent’s evidence he was shown a letter sent by the applicant’s solicitors to Mr Q dated July 2024 that referred to the Heads of Agreement together with a response later confirmed by the affidavit of Mr Q filed 4 October 2024 that he did not intend to pursue the respondent or Mr T for any money which may be due to him in accordance with the Heads of Agreement.
Mr Q sets out his position in his affidavit that there had not been any reconciliation with regards to the WIP collected by any of the partners of S Pty Ltd and certainly not as may have been contemplated by clause 10 of the Heads of Agreement. Furthermore, Mr Q’s evidence is that a final partnership tax return for S Pty Ltd was signed by him on 31 March 2023 and lodged with the ATO soon thereafter.
It is not controversial that Mr T has not confirmed his position, although it is agreed that he has not taken any action in respect of the Heads of Agreement and in particular clause 10 thereof. The applicant’s counsel advised that on instruction, Mr T had been contacted and his position was the same as that adopted by Mr Q however this was not formally confirmed.
Kings Counsel for the respondent submitted that it could not be assumed that Mr T’s position was the same as that adopted by Mr Q and in any event, he considered that the respondent had not been previously advised of the purported position of Mr Q and possibly Mr T and certainly not the contention of the applicant that the amount being sought by way of enforcement was in the sum of $1.3 million dollars.
For his part, counsel for the applicant made it clear that given the respondent’s evidence, it would be asserted that he had not discovered and produced documents relevant to the issues in the proceedings and on that basis, it was foreshadowed that the applicant would amend her Enforcement Application to seek relief pursuant to s 79A of the Act.
On 25 July, the proceedings were adjourned to 9 December 2024. On 16 August 2024 the applicant filed an Initiating Application seeking orders that paragraphs 17 and 18 of the final orders be varied pursuant to r 10.13(1)(e) of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) (“the Family Law Rules”).
No orders were sought pursuant to s 79A as foreshadowed.
The applicant’s position is that the primary application is still the Enforcement Application but if unsuccessful, then in the alternative, a variation to the final orders is sought by way of “slip rule” amendments as set out in the Initiating Application.
BACKGROUND
The parties commenced cohabitation and were married in 1994 and separated on 12 April 2013 after a period of 19 years of cohabitation.
There are now three adult children of the marriage however as at the date of the final orders, the children were aged 12, 10 and 8 years respectively.
In 1994 the parties purchased a property at Suburb AA and then in 2000 the parties purchased a property at Suburb Z. In 2006 both properties were sold and the parties purchased the Suburb G property.
Each of the parties hold qualifications in financial services. At the date of the final orders, the respondent was engaged by B Pty Ltd and the applicant was employed in the financial services profession.
In early 2010 the parties established K Pty Ltd as trustee for the Catlin Superannuation Fund (“the fund”).
In mid-1997 the respondent commenced with a company which later became known as S Pty Ltd. In 2002 the respondent became a salaried partner however he made a decision to leave S Pty Ltd and establish B Pty Ltd. The respondent’s involvement in B Pty Ltd was via an entity controlled by him namely, BB Pty Ltd. BB Pty Ltd was the trustee of the BB Trust.
It is common ground that following his decision to leave S Pty Ltd the respondent was not able to easily reach agreement with his former partners Mr Q and Mr T.
Whilst not directly relevant to the current proceedings, it appears that as a result of taxation law amendments which did not allow the use of service trusts in professional practices, the respondent, Mr Q and Mr T set up a new partnership structure comprising O Pty Ltd as trustee for the O Pty Ltd Trust, R Pty Ltd as trustee for the R Pty Ltd Trust and P Pty Ltd as trustee for the P Pty Ltd Trust.
It appears that each of the partners retained their separate WIP rather than transferring the WIP to a S Pty Ltd central account.
The respondent’s contention is that at 30 September 2014 he considered that there was a loan account owing to O Pty Ltd in the sum of $590,063. At times, the respondent states that the loan account may have been as high as $800,000 to $1,000,000. The respondent concedes that from time to time during the relationship he advised the applicant as to what he considered was properly owed to O Pty Ltd by S Pty Ltd.
The respondent summarises what he considers is the uncertainty in attempting to assess the value of the interest that O Pty Ltd had in S Pty Ltd in 2014 in the following paragraphs from his trial affidavit filed 28 October 2015:
87.The reality is this loan account is reflective of what surplus would be available if the assets were fully recovered at their book value and all liabilities paid. The most significant effect of the loan account balance is the recoverability of WIP, which is shown with a book value of $1,994,864 at 30/9/2014. To be update.
88.WIP ought to be recorded at its net recoverable value. [S Pty Ltd] would classify WIP on a file as either “WIP1” (meaning it is likely to be fully recoverable), WIP2 (meaning is likely to be 50% recoverable) for WIP3 (nonrecoverable). Each […] practitioner at [S Pty Ltd] was obliged to review the WIP on their files at the end of each month and reclassify the recoverability of the WIP if appropriate. I did this meticulously. [Mr T] rarely did this and I am aware that [Mr Q] would be required to review [Mr T] files and perform this reclassification task on his behalf.
89.As mentioned, I do not accept the accuracy of [S Pty Ltd’s] 30/9/2014 financial statement. The WIP on files to which I have been appointed to is shown at the recoverable amount of $592,294 at 30/9/2014. This is the same amount as when I left [S Pty Ltd]. [X Financial Services] have not recorded the WIP drawn since that time, which amounts to $160,210 for the period April to September 2014. The WIP on files I have been appointed to should therefore be reduced to $432,084.
The respondent did not accept the accuracy or level of recoverability of WIP and considered that further adjustments would then be required. The partners attended a mediation in November 2014 resulting in the Heads of Agreement document being signed and entered into.
At the time, the respondent did not consider that the Heads of Agreement resolved all outstanding matters particularly in respect of any claim he might have against S Pty Ltd but he considered that it dealt with “peripheral issues resulting from [his] exit from that partnership and [that it] sets out a mechanism for WIP collection given the difficulties in collecting partnership WIP when partners are no longer in practice together”.[1]
[1] Respondent’s trial affidavit dated 28 October 2015 at paragraph 112.
In preparation for the trial, the parties set out a balance sheet comprising their assets and liabilities. Whilst the parties were not in complete agreement, it is a consistent position by each of them that save as to the respondent’s interest in S Pty Ltd, the applicant considered that the total assets of the parties were approximately $26,000 whereas the respondent considered that the liabilities exceeded the assets by $120,866.
As to the value of the parties’ superannuation entitlement in the fund, the applicant considered that the total superannuation of the parties was $352,022 whereas the respondent assesses the value at $248,374.
The trial had been listed to commence on 25 July 2016. On 20 July 2016 the parties entered into a s 90D Financial Agreement which had at its focus a settling and discharge of any claim or entitlement for spousal maintenance that either party may have against the other.
On 22 July 2016, the parties presented the final orders to the Court. The applicant was represented by counsel and the respondent was represented by his solicitor. The applicant’s counsel advised that the parties had resolved their differences following settlement discussions.

The following extracts from the transcript of the proceedings on 22 July 2016 are relevant:[2]
Your Honour would have noted from reading the trial affidavit material that had been filed on behalf of each of the parties that the asset pool of the parties as reckoned at trial, initially when the matter might have come before or be heard in another place in November last year, might well have been a negative pool – if I was to use that expression – on account of the various liabilities of the parties. The practice over the 19 years of co-habitation for the acquisition of property, both that in which the parties lived and which constituted investments, both in the parties’ own names and also through the various entities which they conducted, and including their superannuation fund, of which the parties had a self-managed fund, were all negatively geared and supported by significant credit card borrowings somewhere in the vicinity of 400 to 500 thousand dollars.
Against that background, and to complicate matters further, about a year after the parties’ separation, the husband, rather, exited from the partnership of which he was a member – a professional partnership of which he was a member, not he, literally, the partnership formally being a partnership of trusts, which had a corporate agent, but effectively, which for the purpose of these proceedings, the husband has been treated as owning and controlling – exited that partnership, which resulted in a partnership dispute. That was a partnership which conducted a [financial services business], which was known as [S Pty Ltd]. That partnership – the resolution of that partnership interest has been the subject of disputation.
It has been the subject of an attempt at mediation to resolve, all of which have been unsuccessful and remain unsuccessful, even to the extent that the mediation agreement has not been given effect to, as was arrived at between the husband on one hand and the two other partners – or the persons representing the two other partners. In the light of that, your Honour, the parties have resolved that aspect of the matter on the basis that when the [S Pty Ltd] dispute is resolved, there will be a distribution of whatever may be remained – and it may well be nothing – is to be divided 60-40 in the wife’s favour. And if there is a shortfall, the husband would otherwise stand for that loss and indemnify the wife in relation to the same. There has been an agreement reached between the parties with respect to financial matters, your Honour, insofar as effectively, besides the [S Pty Ltd] issue – if I might term it that for the want of a handle – there is to be a payment in favour of the wife by the husband of some $60,000. It is not a simple, straightforward payment that is made in favour of the wife.
[2] Transcript 22 July 2016, p.2 line 43 to p.3 line 31.
The applicant’s counsel made submissions that because of the modest nature of the asset pool and the uncertainty arising from the value of the respondent’s interest, if any, in the S Partnership, it was just and equitable for the Court to make the orders as sought by the parties. In addition, submissions were made in respect of spousal maintenance and the parenting arrangements for the parties’ three children.
It is a reasonable assessment that the applicant’s counsel had the primary carriage of the matter and when asked whether the respondent’s solicitor wanted to add to the submissions already made, his response was that he agreed with what had been put to the Court.
It is not controversial that the final orders did not resolve all outstanding issues between the parties as is apparent from litigation brought by the applicant by her Amended Application in a Case filed 10 July 2017 seeking to enforce the provisions of the s 90D Financial Agreement entered into by the parties as part of the final settlement.
For the reasons set out in Catlin & Catlin [2017] FamCA 818, orders were ultimately made in the applicant’s favour and following the determination of the Amended Application in a Case, the applicant was also successful in her cost application against the respondent (see Catlin & Catlin [2018] FamCA 235).
ISSUES FOR DETERMINATION
The issues that require judicial determination in this tranche of litigation are:
(1)The extent to which the respondent has breached or failed to comply with paragraph 17 of the final orders.
(2)If the applicant is unsuccessful in the Enforcement Application, then should paragraphs 17, 18 and 36.7.3 of the final orders be varied pursuant to r 10.13(1)(e) of the Family Law Rules as sought in the Initiating Application.
(3)If the applicant is successful in respect of either the Enforcement Application or the Initiating Application seeking a variation of the order, is there sufficient evidence for the Court to be able to declare a settlement sum that is payable.
(4)The extent of the applicant’s entitlement in the fund in respect of order 36.1 of the final orders.
ENFORCEMENT APPLICATION
Paragraph 17 of the final orders provides as follows:
17.The [respondent] shall pay or cause to be paid to the [applicant] 60% of the net funds received by the [respondent] in his own capacity and/or as a director of [O Pty Ltd] from the partnership [S Pty Ltd] pursuant to clause 10 of the Heads of Agreement dated […]/11/2014 between the [respondent] and his former [S Pty Ltd] partners or otherwise, after the payment of the following:
17.1Such sum as is required to pay the [respondent]’s one third share of the NAB liability in the name [O Pty Ltd] (noting that the total debt is approximately $420,000) until such time as the debt is paid in full;
17.2Any taxation liability and GST payable by the [respondent] or by entities in which he has an interest, following receipt of income from [S Pty Ltd];
17.3Any outstanding leave or other entitlements for staff owing by the [respondent] to [S Pty Ltd];
17.4 Any other partnership liabilities;
17.5With the balance to be paid to the [respondent] provided that should there be any shortfall in respect of the funds received and monies paid or to be paid and pursuant to this Order such shortfall be borne by the [respondent] and the [respondent] do indemnify and keep indemnified the [applicant] in relation to same.
Clause 10 of the Heads of Agreement is in the following terms:
10.The reconciliation is on the basis of one-third each and old partnership accounts will be struck on that basis as at [late] 2016. The parties will agree any adjustments by [early] 2017 or such other time as agreed to by the parties. Thereafter those accounts will be further reconciled bi annually, and agreed within 60 days of each six month period. Any negative adjustments will be paid by that party.
It is conceded by the applicant that the respondent’s one third share of a loan obligation he had to S Pty Ltd was in the sum of $416,667 and that the payment by the respondent of that sum was in priority to monies to be received and retained by the respondent and consequently, the applicant.
The reconciliation referred to in clause 10 of the Heads of Agreement derives from clause 9 which sets out as follows:
COLLECTION OF WIP
9.Notwithstanding those matters set out in paragraphs 2 to 7 above, all WIP that is realised and paid into [Mr Catlin's] NAB WIP account and all WIP that is realised and paid into [Mr Q’s] and [Mr T's] NAB WIP account is realised and paid on behalf of the old partnership. The parties agree that there will be monthly reporting to each of them of all WIP that is realised and a reconciliation as between [Mr Catlin], [Mr Q] and [Mr T] as at [late] 2016 or at such other times as the parties may agree.
The respondent argues that paragraph 17 of the final orders requires him to pay 60 per cent of any adjustment, if any, as may arise following a reconciliation of the WIP received by each of the S Pty Ltd partners.
Irrespective of whether the respondent’s interpretation of the order is correct, his further contention is that given there has not been a reconciliation, no adjustment of the old partnership accounts as set out in clause 10 of the Heads of Agreement has occurred and therefore the obligation to pay the applicant any sum has not yet arisen.
The respondent does not consider there is any likely adjustment in favour of Mr Q and Mr T. For his part, Mr Q confirms by his affidavit filed 4 October 2024 that notwithstanding the terms of the Heads of Agreement there has not been any reconciliation of WIP nor is it contemplated or foreshadowed by him that there will be compliance with the terms. Mr Q does not intend to pursue either the respondent or Mr T and he has lodged a final partnership tax return for S Pty Ltd on 31 March 2023.
The respondent does not dispute the evidence of Mr Q nor does he intend to challenge the ATO lodgement of tax return as being final. There is limited evidence as to the position adopted by Mr T. I accept that Mr T is aware of the enforcement proceedings however he has not sought to be heard nor have either of the parties, but in particular the respondent, required his attendance to better present his position as to whether he agrees with the contention of the respondent that there is still a live issue of dispute as between the S Pty Ltd partners.
In evidence, the respondent accepted that he had not previously advised the applicant either directly or via his solicitors that the difficulty was not that he objected to the possibility that he might have to pay an amount to the applicant but rather that the condition precedent namely, the reconciliation and finalisation of the S Pty Ltd partnership, had not yet taken place.
In the absence of the respondent, counsel for the applicant referred to email correspondence forwarded to the applicant (exhibit “12”) in the following terms:
From:            [Mr Catlin]
Sent:              Friday, […] November 2020 8:14 PM
To:                [Ms Catlin]
Subject:         RE: National Australia Bank & others
Attachments: Loan and GST adjustments […].03.20
[Ms Catlin],
I refer to your email below and confirm:
•collection of the WIP of the [S Pty Ltd] partnership has been completed. I have therefore instructed NAB to revoke your viewing access to the two bank accounts mentioned in your email, as the matter is finalised.
•the requirement under the Corporations Act to lodge Form 524s ceased in August 2018. You have been provided with all applicable Form 524s.
•the only statement I have received of the funds received and applied (other than year-end financial statements and tax returns) is (sic) respect of the [S Partnership] is the attached letter from [Y Financial Services], dated […] March 2020.
•as you will note from [Y Financial Services’] letter of […] March 2020, no payment is to be made to you under clause 17 of the Order dated 22 July 2016
Regards
[Mr Catlin]
The gravamen of the content of exhibit “12” is that it is in stark contrast to the apparent position of the respondent, as put by his Kings Counsel, that because there had been non-compliance with clause 10 of the Heads of Agreement the respondent did not have any obligation to make any payment pursuant to paragraph 17.
The respondent’s position was unequivocal as appears in the following evidence:[3]
[3] Transcript 25 July 2024, p.143 line 25 to p.144 line 5.
[Counsel]:[Mr Catlin] I'm just exploring with you your understanding of how important this issue is in this application, and I’m suggesting to you that you understand that that is the key roadblock on your own position to you having any payment obligation under paragraph 17, is compliance with clause 10?
[Respondent]: Yes, I agree with that proposition.
[Counsel]:And despite that, as you’ve said, you have done nothing at all to cause the inquiry to be made of your partners about whether they are ever going to take any further steps in relation to that clause?
[Respondent]: So at all period of time, because ever since 2015/16 I’ve been requiring my former partners to provide me with documentation.
[Counsel]:You haven’t written to either of them, through your solicitors or otherwise, saying [Mr Q], [Mr T], are you actually going to do anything about this? Are you going to sue me?
[Respondent]: Correct.
[Counsel]:And you haven’t written to them saying if you don’t do something about this I’m going to sue you?
[Respondent]: Correct.
[Counsel]:So your position, as it stands, is you haven’t even asked the question of your partners, are you going to bring this to a head?
[Respondent]: Correct.
[Counsel]:You haven’t brought it to a head?
[Respondent]: Correct.
[Counsel]:So your position to his Honour is nothing can happen until clause 10 is complied with, and I’m not doing anything about it, and I haven’t even asked my partners whether they’re doing anything about it?
[Respondent]: I disagree to the extent that you say that I’m doing nothing about it. I’m considering the proposition that they’ve put to me that I owe approximately $200,000 under clause 10.
The evidence supports a finding that the respondent considered that the money received into the O Pty Ltd account was able to be used by him and neither he nor his former partners were expected to account for money received.
Whilst not a matter that was given much focus, there is no evidence that the respondent attempted to in some way quarantine money received by him in anticipation of the possibility that there may be an adjustment required if and when a reconciliation was ever to be undertaken.
Moreover, by the time of the presentation of the final orders, it was apparent to the respondent that there had not been any compliance with the terms and conditions of the Heads of Agreement.
Mr Q and Mr T were not parties to the original proceedings and to the extent that the final orders contemplated a mechanism by which the applicant could be kept informed of the funds received by the respondent either in his own capacity and/or as a director of O Pty Ltd from the S Partnership, that was achieved by placing the primary obligation on the respondent, pursuant to paragraph 18 of the final orders, to provide the applicant with all Form 524 presentation of account and statements documents that were lodged.
Whilst paragraph 19 of the final orders provided authority to the applicant to make all necessary enquiries and view all documents and records associated with S Pty Ltd, in reality, that could only be achieved with the support and consent of Mr Q and Mr T who were under no obligation to do so. In any event, as at the date of making the final orders, the respondent knew that to the extent that the Heads of Agreement between the partners to S Pty Ltd was an important aspect in the proceedings, reliance upon it was problematic.
A relevant consideration is that the Form 524 documents were likely the only reliable indicator for money received by the respondent into the O Pty Ltd account. Exhibit “12” confirms that the respondent considered that no further information was required to be provided to the applicant given that a change to the Corporations Act 2001 (Cth) dispensed with a Form 524 but replaced it with Forms 5602 and 5603 which contained the same information as the replaced Form 524.
As a result, I am able to find that the intention of paragraph 18 of the final orders namely, that the applicant would receive an ASIC document which would evidence the amount received by the respondent, was frustrated by the respondent ceasing to provide the equivalent ASIC document after 2018.
Discussion
As considered, the final orders were made by consent.
Section 81 of the Act imposes an obligation on the Court, so far as is practicable, to end the financial relationship between the parties and avoid further proceedings.
As at the date of the making of the final orders, r 1.04 of the Family Law Rules 2004 (Cth) (“the 2004 Rules”) provided:
1.04The main purpose of these Rules is to ensure that each case is resolved in a just and timely manner at a cost to the parties and the court that is reasonable in the circumstances of the case.
The main purpose of Rules was to provide ongoing consistency with the principles set out in order 4 r 4 of the 2004 Rules namely that the Court should “have regard to the need to provide a prompt and inexpensive resolution of the matters in issue between the parties.”
The old Rules and the main purpose of the Family Law Rules as set out in r 1.04 were designed to direct the parties and the Court to have regard to the real merits of the case, minimise expense and enable a faster resolution of litigation thereby promoting the proper administration of justice.
Rule 1.08 of the 2004 Rules sets out the responsibility of parties and lawyers in achieving the main purpose as follows:
(1)Each party has a responsibility to promote and achieve the main purpose, including:
(a)Ensuring that any orders sought are reasonable in the circumstances of the case and that the court has the power to make those orders;
(b)       Complying with the duty of disclosure (see rule 13.01);
(c)       Ensuring readiness for court events;
(d)       Providing realistic estimates of the length of hearings or trials;
(e)       Complying with time limits;
(f)Giving notice, as soon as practicable, of an intention to apply for an adjournment or cancellation of a court event;
(g)       Assisting the just, timely and cost-effective disposal of cases;
(h)       Identifying the issues genuinely in dispute in a case;
(i)Being satisfied that there is a reasonable basis for alleging, denying or not admitting a fact;
(j)Limiting evidence, including cross-examination, to that which is relevant and necessary;
(k)Being aware of, and abiding by, the requirements of any practice direction or guideline published by the court; and
(l) Complying with these Rules and any orders.
At the time of the making of the final orders, the Court was assisted by the extensive affidavit and other material that comprised the Court file but in particular, the documents upon which the parties intended to rely for the purposes of the trial. As considered, the Court had regard to the trial affidavits of each of the parties together with their financial statements.
The affidavit evidence of each of the parties together with the submissions of counsel for the applicant and the respondent’s solicitor were an important consideration in discharging the Court’s obligation under s 79(2) of the Act to make orders that were just and equitable.
In Harris v Calladine [1991] HCA 9 (“Harris v Calladine”), Brennan J considered the approach to be taken when the Court is presented with a consent order pursuant to s 80(1)(j) of the Act and said:
11.It does not follow that, when a consent order is sought in a s.79 application, it is necessary to conduct an inquiry into each of those factors. The Court may be satisfied that a provision is proper by reference not only to the material before the Court relating to the factors mentioned in s.79(4) but by reference to the advice available to the respective parties and the consent which they respectively give to the making of the order. In the majority of cases, once it appears that the parties are conscious of the factors mentioned in pars (a) to (f) and have taken them into account before consenting, the provisions “with respect to financial matters” proposed for incorporation in the consent order will be seen to be “proper”. The factor mentioned in par.(g) may require independent inquiry by the Court, but that question does not arise in this case. Nevertheless, when an application for a consent order in a s.79(1) matter is made there is a discretion to be exercised with reference to the propriety of the provisions with respect to financial matters. The making of a consent order in a s.79(1) matter is not automatic.

Whilst a Consent Order is a reflection of a contract between the parties, it is enforceable as an order rather than a separate action relying upon contractual remedies.
The parties are not able to contract out of the provisions of Part VIII of the Act and in particular, s 79(2), which prohibits the Court from making an order “unless it is satisfied that in all the circumstances it is just and equitable to make the order”.
I accept that if a Court is satisfied that the parties come to their agreement appropriately informed and that their consent is willing then, depending upon the circumstances, not much more may be required.
In the present case, the Court had the advantage of significant affidavit evidence that assisted in determining that the orders and resultant outcome was just and equitable.
In I limited & Chester & Ors (2010) FLC 93-456 the Full Court considered the relevant principles concerning the treatment and effect of a consent order. Their Honours considered the discussion by Brennan J in Harris v Calladine (supra) as follows:
164.The nature of a final consent order was discussed by Brennan J in Harris v Caladine (1991) 172 CLR 84 at 104 where his Honour observed that a consent order under s 80(1)(j) of the Act “though made in accordance with the parties’ contract, takes effect as an order of the Court and is enforceable as such rather than as a contract to be sued on in a separate action”: see De Lasala v De Lasala [1980] AC 546, at p 560”. Section 80 is in Pt VIII of the Act.
…
166. … Brennan J also observed at at pp 104 & 105:
When the parties to a contract choose to have the contract embodied in a consent order of the court, the court “will only interfere with such an order on the same grounds as it would with any other contract”: per Lord Denning MR in Siebe Gorman & Co Ltd v Pneupac Ltd [[1982] 1 WLR 185, at p 189; [1982] 1 All ER 377, at p 380].
It is also a relevant consideration that this is not a case where one of the parties has simply submitted to an order. It is apparent from the history of the litigation that considerable trial preparation was undertaken, counsel were properly instructed and the matter was listed for trial which was avoided only by the parties entering into extensive settlement discussions which culminated in the final orders.
The contention of the respondent is not that paragraph 17 of the final orders is incapable of compliance nor a clear or plain meaning but rather, the reference to clause 10 of the Heads of Agreement is in effect, a condition precedent to the order. As such, and consistent with the submissions of Kings Counsel, although inconsistent with exhibit “12” and the respondent’s evidence, the circumstances have not yet been arrived at that would crystalise a time when a calculation could be undertaken. It is beside the point, that the respondent’s view is that his obligation today is the same as expressed by him to the applicant in exhibit “12” namely, that no further monies are due and payable.
The contention of the applicant is that she was not a party to the Heads of Agreement and is not bound by it. Moreover, whilst paragraph 17 of the final orders refers to clause 10 of the Heads of Agreement, it does not incorporate the agreement in the final orders.
The consideration therefore is whether the reference to clause 10 of the Heads of Agreement is intended to do no more than merely identify a source of income namely, the collection of WIP from the S Partnership.
An important consideration is the focus that each of the parties had upon the collection of WIP in circumstances where the Court understood that the collection of WIP was likely to be the only viable asset of value even though the applicant conceded that it may ultimately have little or no value.
As at the date of the final orders (being 22 July 2016), the Heads of Agreement had been in place for approximately 20 months (being since November 2014). The parties were aware of the importance of the collection of WIP by the respondent and even the most cursory reading of the trial affidavit material highlighted a high level of uncertainty as to the extent of WIP that was likely to be collected.
An important consideration is that as at the date of the final orders the respondent knew that there had not been a monthly reporting as between the partners of WIP collected by each of them as required by clause 9 of the Heads of Agreement in anticipation of a reconciliation as at 31 December 2016 or at such other time as the parties agree.
It is a trite observation that the Heads of Agreement was best observed in the breach rather than the observance.
Paragraph 17 of the final orders contemplates that the respondent shall pay or cause to be paid to the applicant 60 per cent of the net funds received by him “in his own capacity and/or as a director of [O Pty Ltd] from the partnership [S Pty Ltd] pursuant to clause 10 of the Heads of Agreement dated […]/11/2014…”.
The initial observation is that the respondent is to pay the applicant 60 per cent of the “net funds” received by him. It is not suggested that the applicant is to receive 60 per cent of net funds consequent upon a “reconciliation” but rather from funds received by the respondent following the payment of liabilities in respect of subparagraphs 17.1 to 17.4 inclusive.
Subparagraph 17.5 contemplates a circumstance where the liabilities may exceed the income in which case the respondent is to indemnify the applicant.
The parties to the Heads of Agreement are set out in clause 1 as follows:
1. The parties to this Heads of Agreement are:
1.1[Mr Catlin] in his own capacity and as a director of [O Pty Ltd];
1.2[Mr Q] in his own capacity and as a director of [P Pty Ltd];
1.3[Mr T] in his own capacity and as a director of [R Pty Ltd]; and
1.4Each company in its own capacity and in its capacity as a trustee of their respective trusts.
The agreement also enables the parties to enter into further discussions and reach a different agreement.
What is now known is that the respondent and Mr Q have no intention to seek remedy pursuant to the Heads of Agreement and it can be reasonably assumed that Mr T is of a like mind. If the contention was otherwise, then it would fall to the respondent to have called Mr T and/or produced a document from him indicating a contrary intention. Whilst not canvassed, any remedy that might be sought may well raise the question as to whether it would be statute barred.
The obligation on the respondent is heightened by the indication of the applicant’s counsel that Mr T had been contacted and that whilst the instructing solicitor was seeking formal confirmation, Mr T had indicated that he did not intend to pursue remedy against either Mr Q or the respondent. Again, the importance of exhibit “12” cannot be underestimated.
The reference in paragraph 17 to “the husband in his own capacity and/or as a director of [O Pty Ltd]” invites a finding that each of the partners in either their personal capacity or via their separate corporate entities (family trusts) would receive and collect outstanding WIP and at some point, there would be a reconciliation as between the three partners based upon the total WIP received.
It is not a credible argument that in some way the respondent’s obligation to the applicant was limited to any adjustment that occurs upon a reconciliation thereby ignoring a base amount of WIP received, retained and spent by the respondent.
There is no basis for what is now established to be a substantial sum to have been excluded from the potential assets of the parties in the absence of such a proposition being foreshadowed in the affidavit material and also in the absence of any submissions from the respondent’s solicitor given the importance of the respondent’s collection of WIP as being the only likely asset of value.
There has been some focus as to the impact the use of the words “and/or” in paragraph 17 of the final order has on the consideration of the meaning and intention of the order.
When considering the interpretation of a contractual term, applicable to the terms of the final order and in particular paragraph 17, the process is not to ascertain the subjective intention of the parties but rather to look at the objective approach, namely, what a reasonable person would have intended or assumed given the information and evidence available to them.
It is not suggested by either of the parties that there is a level of ambiguity that raises a consideration as to whether a finding of patent ambiguity is open on the basis that the document or order has more than one possible meaning or is fundamentally doubtful in meaning. There needs to be clarity in respect of the meaning intended to be conveyed.
A further consideration is the use of the words “and/or” in paragraph 17 of the final orders. The use of “and/or”, particularly in legal drafting, has been the subject of broad discussion given that there is the potential for the words to obscure obligations rather than provide better clarity. From time to time the use of the words has proven problematic, however it is a reasonable observation that despite broad commentary that it would be better for the words not to be used, it is not uncommon for the words “and/or” to appear in contracts and orders.
The complexity is whether the use of the words “and/or” in paragraph 17 is meant to provide the alternative of either funds received by the respondent in his own capacity and in his capacity as a director of O Pty Ltd or whether it indicates a more limited consideration.
In Australian Competition and Consumer Commission v Adata (Vic) Pty Ltd (No 3) [2015] FCA 583 the problem with using the expression and symbol of “and/or” was discussed at [57]:
57.… In ReMoage Ltd(in liq) (1998) 153 ALR 711 at 716-717, where [Burchett J] referred to a number of English decisions where [the use of “and/or”] was variously described as: “a loose expression conveying a vague meaning”; as a “confusing expression”; and as being a “loose and ambiguous term”.
In Neame v Neame Trs [1956] SLT 57, the majority of the court read “and/or”, in a deed, as meaning nothing more than “and”. The Lord President, Lord Clyde, said at [62]:
But it would be most unfortunate if a confusing expression such as “and/or” were to become a common feature in Scottish marriage contracts or testamentary settlements.
Although the use of “and/or” in contracts may render a term void for uncertainty, courts have accepted that it is certainly within the discretion of the judge to decide that the evidence supports that the expression or term does have intended meaning. (See Edmunds-Jones Pty Ltd v Australia Women’s Hockey Association Inc [1999] NSWSC 1014).
Whilst the respondent’s case is that he agrees he owes the applicant money as referred to in paragraph 17, he considers that the timing is yet to commence as pursuant to clause 10 of the Heads of Agreement, there has not been a settling up and reconciliation as between the partners and therefore, the time has not yet arrived for a sum certain to be crystalised. The respondent’s case does not consider however the effect of the term “and/or”.
A further qualification is that the parties have not taken into account the express use of the words “or otherwise after the payment of the following”. There is no dispute that the respondent has discharged his obligations under subparagraphs 17.1 to 17.4 inclusive.
The order does not expressly refer to the payment as being 60 per cent of the “reconciliation” or the “adjustment” between the partners as the respondent purports is the meaning and intention of clause 10 of the Heads of Agreement.
Whilst there was some level of uncertainty as at the making of the final orders as to the extent of money that the respondent would receive, no doubt that at the time of the order being made, the respondent had received the funds representing S Partnership WIP and was subsequently used by him without any advice to the applicant nor any attempt by him to quarantine monies received pending the resolution of adjustment and/or reconciliation with Mr Q and Mr T.
It is also inconsistent with the respondent’s approach that he has performed the obligations as required under subparagraphs 17.1 to 17.4 of the final orders.
Again, it is an appropriate observation that none of these matters, which according to the respondent readily arises when a more detailed consideration of paragraph 17 is made, was expressed in submissions by the respondent’s solicitor necessary to satisfy the Court that the proposed orders were just and equitable.
In the circumstances, I do not consider that there is any ambiguity or uncertainty in the underlying intention of paragraph 17 of the final orders. The order does not contain any reference to a reconciliation or a payment based on the adjustment.
By reference to the Heads of Agreement, the intention of the S Pty Ltd partners was that the agreement would catch WIP received by each of them either in their own names or in their capacity as a director of their relevant trustee companies noting that the original S Partnership included the partners in their own personal capacity and it was only upon accounting advice that a decision was made to reform the partnership with the inclusion of the companies which were trustees for the separate family trusts of the partners.
The use of the word “or otherwise” enables paragraph 17 to be read widely and in particular, that the expression “and/or” can be read as “and”.
The reference to net funds received does not bring into play any consideration of a reconciliation or an adjustment.
The agreement between the partners, whilst intended to be binding, nonetheless contemplated that they may reach a different agreement. The level of uncertainty as to what would happen consequent upon the agreement of the partners required that paragraph 17 be drafted with the widest possible meaning.
I find that paragraph 17 of the final orders is to be read as having the following meaning:
(1)The respondent shall pay or cause to be paid to the applicant 60 per cent of the net funds received by him less the liabilities in subparagraph 17.1 to 17.4 inclusive:
(a)In his own capacity; and
(b)As a director of O Pty Ltd from the partnership of S Pty Ltd or otherwise.
Calculation of WIP received by the respondent
The applicant contends that the respondent had an interest in S Pty Ltd worth $1,624,000 less the liability under subsection 17.1. There is no evidence as to a liability crystalised pursuant to subsections 17.2 to 17.4 and therefore, the net value as available to the respondent was in the sum of at least $1,207,377.
Amount payable by respondent to the applicant
By way of an aide memoire the applicant summarises the amount she contends is properly payable to her pursuant to paragraph 17 of the final orders as set out at paragraph 85 of counsel’s Written Submissions document as follows:

Westpac CIT Account receipts $295,110.13

NAB WIP Account receipts $1,361,664.38

Form 524 remuneration amounts $37,099.35

Form 5602 remuneration amounts $92,575.07

TOTAL $1,786,448.93

TOTAL EXC GST $1,624,044.48

The applicant accepts that GST is likely to have been payable in respect of the fees received and whilst no evidence was presented by the respondent, she has performed a notional calculation.
The applicant accepts the payment by the respondent in the sum of $416,667 for his share of the S Pty Ltd debt as set out in subparagraph 17.1 of the final orders. On that basis, the contention of the applicant is that the net funds received by the respondent is in the sum of $1,207,377.48 and that a 60 per cent payable to her is represented by the amount of $724,426.
The respondent did not provide any evidence in respect of the following:
(1)Taxation and GST liability payable by the respondent or his entities (17.2 of the final orders);
(2)Any outstanding leave or other entitlements for staff owing by the respondent to S Pty Ltd (17.3 of the final orders); and
(3)Any other partnership liabilities (17.4 of the final orders).
The applicant accepts that there is some uncertainty in respect of the evidence that would provide a more accurate calculation of the WIP received by the respondent however, doing the best that she can, she relies on the following evidence as a basis for her calculations:
(1)WIP paid into the Westpac CIT Account from April 2014 to April 2015;
(2)WIP paid into the NAB WIP Account from April 2015 ongoing; and
(3)WIP received by the respondent to accounts that were not discovered and unknown to the applicant in respect of WIP recorded in ASIC documents.
Exhibit “3” comprises bank statements for the Westpac Account from 1 April 2014 to 30 September 2015.
Exhibit “5” provides various tax invoices recording fees received by the respondent into the S Pty Ltd NAB Account.
Exhibit “4” is a document entitled ‘[Mr Catlin's] WIP recovery proposal’ which relates to the respondent’s WIP for the period February to October 2014.
The applicant holds a qualification in the financial services profession. It is her evidence, based upon a consideration of the documents that were made available by the respondent, that forms the basis of the WIP calculation as money likely received by the respondent.
Exhibit “7” is an excel spreadsheet that sets out the respondent’s analysis for the period between 19 May 2015 to 16 June 2020 with total credits in the sum of $1,361,664.
The applicant was not challenged in respect of her analysis and in the circumstances, the submission on behalf of the applicant is that given the manifest lack of discovery and disclosure by the respondent, the Court should adopt a robust approach in preferring her evidence over that of the respondent. The applicant does not assert that her analysis is without error or omission but given the lack of disclosure and in particular the respondent’s own evidence that he considered he was not under any obligation to provide the updated ASIC 5062 forms she has done all that is reasonable to present evidence that should have been the obligation of the respondent.
Rule 6.01(1) of the Family Law Rules provides:
…each party to a proceeding has a duty to the court and to each other party to give full and frank disclosure of all information relevant to the proceeding, in a timely manner.
Rule 6.03 provides in summary, that a party who is in possession of a document or is under the control of a party, has a duty of disclosure and must disclose each document if it is relevant to an issue in the proceedings.
Rule 6.06(3) sets out what is considered to be full and frank disclosure in relation to financial proceedings. It is not a matter for a party to cherry pick the documents that they consider should or should not be disclosed. The duty of disclosure relates to documents even if they are not of assistance to the disclosing party.
Whilst the decision related to a question of addbacks in circumstances of non-disclosure, the following position adopted by the Full Court in Weir & Weir (1993) FLC 92-338 at [79,593] is relevant to the current proceedings:
It seems to us that once it has been established that there has been a deliberate non-disclosure, which follows from his Honour’s findings in this case, then the Court should not be unduly cautious about making findings in favour of the innocent party. To do otherwise might be thought to provide a charter for fraud in proceedings of this nature.
By order made 15 December 2023, the respondent was ordered to provide on or before 2 February 2024 “disclosure of information and documents relevant to the proceedings”. Whilst the order was made by consent in respect of both parties, it is not controversial that the documents relevant to the calculation of WIP received by the respondent are in his possession, power and control.

In preparation for hearing listed before me on 31 May 2024, a Judicial Registrar made orders on 14 February 2024 that required each of the parties to exchange documents as set out in r 6.06 for statements for all bank or credit union accounts for the period from 12 months before the date of separation and a range of documents that dealt with the personal financial circumstances of each of the parties.
The only limitation to the requirement for production of documents was that the parties did not have to provide a Financial Statement pursuant to trial direction orders made on 7 August 2024.
The evidence was replete with admissions by the respondent that there were documents available to him that had not been disclosed or provided. The respondent’s explanation was that he considered the application for enforcement to be without merit and on his case, a range of documents that would have enabled a better understanding of the WIP received, irrespective of how the respondent considered it should be treated, were not provided.
The respondent’s position is that whilst he accepted that he had “recovered something in the order of $1.5 to $1.6 million dollars in WIP that had been invoiced”[4] he did not consider that any amount was likely to be payable to the applicant. Moreover, in the respondent’s affidavit filed 27 October 2023, he set out his instructions to W Financial Services to consider the reconciliation pursuant to clause 10 of the Heads of Agreement:
23.[In] August 2019 I engaged the accounting firm [W Financial Services] to assist me to perform the reconciliation required under clause 10 of the Heads of Agreement. This exercise was performed in circumstances where I had not been provided with details of the collections made on behalf of the other members of the Old [S Partnership]. Instead, I referred [W Financial Services] to the financial statements prepared by [X Financial Services] and [Y Financial Services] which set out, in broad terms, the income and WIP balances of the Old [S Partnership]. Now produced, shown to me and marked ‘[H-5]’ and annexed to this Affidavit is a true copy of my email to [W Financial Services] engaging their services and copies of the financial statements prepared by [X Financial Services] and [Y Financial Services] which I provided to [W Financial Services] to assist me.
24.[W Financial Services] confirmed that as at 30 June 2018 there would be no adjustment, or payment, to me under clause 10 of the Heads of Agreement but rather a small payment was required to be made by me to the Old [S Partnership]. The confirmation from [W Financial Services] was oral and has not been confirmed in writing as I am still waiting for the information and documents necessary to confirm the position in relation to clause 10 of the Heads of Agreement.
[4] Transcript 25 July 2024, p. 161 line 29.
It is not controversial that W Financial Services have not provided any report in writing and in evidence, the respondent conceded that the engagement of W Financial Services was on the basis that they should undertake the necessary reconciliation doing the best that they can in circumstances where he conceded that he did not have the details of collections made on behalf of the other members of the Old S Partnership.
The respondent conceded that he was charged $5,000 for the work undertaken by W Financial Services and notwithstanding that his instruction sought that they prepare a report, none was forthcoming. The engagement of W Financial Services appears to have taken place within the parameters of a meeting. The following evidence from the respondent highlights that even if there had not been a formal report, a range of other documents including working papers would have been brought into existence by W Financial Services:[5]
[5] Transcript 25 July 2024, p. 171 line 6 to p. 171 line 26.
[Counsel]:They would have taken the information you gave them or whatever was available to them, and they would have probably used Excel or something similar to work through all of that and come to the answer that they gave you at your meeting?
[Respondent]: Yes. They would have – I’m not sure if Excel or not, but – yes. Certainly, they would have done some work for them.
[Counsel]:But it’s not – given the level of detail we’ve seen in all of these documents about WIP and payments and the like, it’s not something someone can sit down with a calculator and do without writing anything down?
[Respondent]: Yes. I agree.
[Counsel]:And I suggest, if you asked [W Financial Services], they would give you whatever they had on their file about that?
[Respondent]: I expect so. Yes.
[Counsel]:And you haven’t disclosed in this proceeding any of those documents, have you?
[Respondent]: No.
[Counsel]:When you had the meeting, did they show you anything on a screen or on paper?
[Respondent]: Yes. They did show a – a draft that they were working on.
[Counsel]:So there’s at least a draft report in line with your instructions that exists that hasn’t been disclosed in this proceeding?
[Respondent]: Correct.
Whilst the respondent was prepared to concede that there would likely be documents relevant to the proceedings that had either been provided by him to W Financial Services or had been brought into existence as a result of his instructions to W Financial Services to undertake the reconciliation exercise, it is useful to consider the obligation that a party has to give discovery by reference to the decision of Re McGorm; Ex parte Co-operative Building Society of South Australia [1989] FCA 87 wherein Von Doussa J said:
5.The obligation resting on a party obliged to give discovery requires that he make proper enquiries and efforts to identify and disclose all relevant documents that are not in his possession. The obligation extends to making enquiries from the person in whose possession the documents now are in…
6.The scope of the enquiries which should be made will depend on the circumstances of the case having regard to the need for discovery in order to dispose fairly of the matters in question, or to save costs in the proceedings. The enquiries must be reasonable, but do not demand of the party giving discovery that he goes to lengths which are oppressive...
(Citations omitted)
As a consequence, there is no firsthand evidence to support the respondent’s contention that a reconciliation pursuant to clause 10 of the Heads of Agreement, as purportedly conducted by W Financial Services and relied upon by the respondent in paragraphs 23 and 24 of his affidavit, should be given any weight.
The respondent asserts that possibly as early as 30 June 2018 but certainly by 2020, no further WIP was recovered. The evidence of the respondent is a concession that he did recover WIP after 2020 but did not disclose that fact to the applicant but rather adopted the fiction that because the ASIC Form 524 was made redundant and replaced by Forms 5602 and 5603, there was no further obligation to provide documents which would have confirmed that the respondent had received WIP past the end date set out in exhibit “12”.
Whilst it is likely that WIP was received by the respondent after 2020, no information is available that would enable there to be a better understanding of what or how much WIP was actually received.
Although the applicant seeks that as part of any orders by way of enforcement the respondent provide further discovery (presumably to enable a further claim to be pursued), the proceedings have been on foot for 11 years and the litigation has been protracted.
In those circumstances, I consider that there has been ample opportunity for the parties to consider the future conduct of the proceedings and as such, I do not propose to fall in with the applicant’s request for the respondent to provide further information.
Accordingly, I find that the applicant is entitled to the sum of $724,426.
The applicant also seeks an entitlement to interest pursuant to s 117B(1) of the Act.
The applicant argues that by the respondent ceasing to provide the updated ASIC documents to her in 2018 and the further decision to deny her access to the relevant accounts in 2020, interest should apply from at least 2020 if not 2018. Whilst egregious, the proceedings have been left to linger and it was open to the applicant to bring an enforcement application either in 2018 when the respondent ceased forwarding relevant ASIC documents and certainly in 2020 where he made it clear as set out in exhibit “12” that he had no further obligation and the matter was effectively at an end.
SUPERANNUATION ADJUSTMENT
The applicant seeks the following order by way of enforcement of paragraph 36 of the final orders:
13.That pursuant to paragraph 45 of the Order and s 106A of the Family Law Act 1975 a Registrar or Deputy Registrar of this Honourable Court be appointed to execute on behalf of the [respondent] as a director of either [K Pty Ltd] or [K2 Pty Ltd] (whichever of the two is the trustee company for [Superannuation Fund 1] (“the Fund”) all documents necessary to give effect to the superannuation splitting order set out in paragraph 36 of the Order.
Given that the most significant asset held by the fund is the Suburb V property, the applicant seeks that it be sold in order to give effect to the orders requiring that the applicant rollover her superannuation entitlement to a superannuation fund of her choice.
The relevant paragraph in the final orders provides as follows:
36.That in accordance with s 90MT(1)(a) of the Family Law Act whenever a splitable payment becomes payable from the superannuation interest held by the wife in [Superannuation Fund 1] (“the Fund”):
36.1The trustee shall do all such acts, matters and things so as to pay to the wife the entitlement calculated in accord with Part 6 of the Family Law Act (Superannuation) Regulations 2001 using a base amount of ONE HUNDRED AND THIRTY THOUSAND SIX HUNDRED AND TWENTY THREE DOLLARS ($130,623) plus 6% calculated from 18 November 2015 to the date of the rollover referred to in paragraph 36.7.3 less the amount of the wife’s member entitlement as at 30 June 2018; and
36.2There shall be a corresponding reduction in the entitlement that the husband would have had in the fund but for these orders;
36.3     That order 36 shall have effect from the operative time;
36.4     The operative time shall be on 30/6/2018;
36.5     This Order binds and shall bind the Trustees of The Fund;
36.6     Liberty to apply generally is reserved to the Trustee; and
36.7Forthwith upon the preceding orders 36.1 to 36.5 having been carried out in full;
36.7.1 the wife shall resign as trustee of The Fund;
36.7.2the wife shall if necessary resign as a director and transfer all her shares in [K Pty Ltd] (“the trustee of The Fund”) and [K2 Pty Ltd] to the husband;
36.7.3the wife shall as soon as practicable after 30/6/2018 then rollover her member entitlements into a Superannuation Fund of her choice;
36.7.4the husband and wife shall sign all such documents and do all such things as are necessary including but limited to selling or encumbering any asset or calling in any liability to facilitate the said rollover;
36.7.5the husband including in his capacity as trustee of The Fund shall thereafter fully indemnify the wife in relation to all claims against The Fund.
36.8Thereafter each party shall retain free of any further claim or demand or right or entitlement of the other their respective superannuation entitlements.
Each of the parties suggest that paragraph 36 of the final orders is clear in its terms.
The respondent contends that paragraph 36.1 of the final orders provides that the applicant’s entitlement is to be determined using an amount of $130,623 together with 6 per cent interest calculated from 18 November 2015 to the date of the rollover, less the applicant’s member entitlement as at 30 June 2018.
The respondent’s calculation is set out in paragraph 64 of his affidavit filed 27 October 2023 as follows:

Base amount $130,623.00

Interest at 6% for 997 days, from 18 November 2015 to 10 August 2018 $21,407.86

Less applicant’s member balance as at 30 June 2018 ($74,355.21)

BALANCE $77,675.65

The respondent’s calculation would see the applicant retain an amount of $152,030.86, less her member balance being $74,355.21 such that she receives the amount of $77,675.65.
The applicant’s position is that she should be entitled to the sum of $130,623 together with interest inclusive of her member balance.
At the time that the order was made, the parties relied upon their trial affidavits to provide assistance in the Court understanding the basis upon which I was being asked to make a Consent Order in respect of their superannuation interests.
For his part, the orders sought by the respondent in his Further Amended Response filed 7 July 2015 was that pursuant to s 90MT(1)(a) of the Act, the following was to occur:
(1)The Trustee of the fund would pay to the applicant an entitlement calculated in accordance with Part 6 of the relevant superannuation regulations using a base amount of $5,098;
(2)There would be a corresponding reduction in the entitlement that the respondent would have had in the fund but for these orders;
(3)The respondent would resign as trustee of the fund and transfer her shares in K Pty Ltd and K2 Pty Ltd (the trustee of the fund), presumably to the respondent or possibly a nominee; and
(4)The applicant would rollover her member entitlements into a superannuation fund of her choice.
It is apparent that the respondent intended to retain the fund given that its principal asset was the Suburb V property.
By reference to the Amended Initiating Application filed 28 August 2015, the applicant did not specify any final orders sought in respect of the treatment of superannuation. The final order sought in relation to the division of property was that “the parties divide their net assets on a 75:25 basis in favour of the [applicant]”.
The applicant’s trial affidavit of 26 October 2015 sets out at paragraph 91 that by reference to annexure “[W4]”, being assets and liabilities of the parties, the combined superannuation interests are in the sum of about $352,022.
In addition, the applicant proposes at paragraph 262.1.4 that she retain her Superannuation Fund 2 entitlement and that there be a splitting order from the fund to a base amount as necessary to divide the fund as to 75 per cent to the applicant and 25 per cent to the respondent. What is not in dispute is that the parties agreed that there would be a superannuation split from the respondent’s splitable entitlement to the applicant. The parties were not agreed as to the amount.
Whilst not presented to the Court either by way of affidavit material or an agreed position, by reference to the respondent’s affidavit of 27 October 2023, it is likely that the sum of $130,623, being the “base amount” as set out in paragraph 36 of the final orders, was in some way determined by reference to the applicant’s member balance of $67,525 as at 30 June 2015 and the respondent’s member balance of $166,762.
I am not able to identify evidence that was presented which informed my decision to make the order.
As at the time of making the final orders, s 90MT(1)(a) of the Act was in the following terms:
(1)A court, in accordance with section 90MS, may make the following orders in relation to a superannuation interest (other than an unsplittable interest):
(a)if the interest is not a percentage‑only interest—an order to the effect that, whenever a splittable payment becomes payable in respect of the interest:
(i)the non‑member spouse is entitled to be paid the amount (if any) calculated in accordance with the regulations; and
(ii) there is a corresponding reduction in the entitlement of the person to whom the splittable payment would have been made but for the order;
Paragraph 36.1 of the final orders proposes that the trustee pay to the applicant a base amount to be calculated by deducting her member balance as at 30 June 2018 from the notional sum of $130,623.
Paragraph 36.2 provides, with clarity, that the base amount as determined by paragraph 36.1 shall be split from the respondent’s splittable entitlement to the extent that there would be a corresponding reduction.
Whilst the applicant does not accept the respondent’s position as to how paragraph 36 is to operate, it must be noted that paragraph 36.7.3 requires the applicant to rollover her member entitlements into a superannuation fund of her choice upon having received the base amount as specified in paragraph 36.1. The reference to the “wife’s member entitlement as at 30/6/2018” does not extinguish her member entitlement but rather is simply used as a descriptor or variable for the purposes of the calculation of the base amount.
If paragraph 36 was intended to extinguish the applicant’s member entitlement there would have been provision for a superannuation split from the applicant to the respondent of a base amount that equalled her member balance.
The respondent seeks that paragraph 36 of the final orders be afforded its plain meaning whereas the applicant rejects the respondent’s approach by highlighting purported inconsistencies in the drafting of the order. If the order is not able to be given the meaning promoted by her, she seeks orders in terms of paragraph 4 of the Initiating Application filed 16 August 2024 being that pursuant to r 10.13(1)(e) of the Family Law Rules, there be a slip rule amendment such that paragraph 36.7.3 of the final orders be varied by adding the following after the word “entitlements”:
Being the sum of the wife’s member entitlement as at 30 June 2018 plus the amount of $56,297.79 (plus any applicable interest) as referred to in paragraph 36.1.
I am not satisfied that a slip rule remedy is appropriate in circumstances where it could not be said that the surrounding material whether by way of documents or oral submissions provided assistance such that an amendment is required in order to give effect to the Court’s intention as opposed to the intentions of the parties.
As it now transpires, the approach that I adopt may well produce an outcome that is in effect a difference but without a distinction. The evidence of the respondent as to the member entitlements of the parties in the fund as at 30 June 2018 will produce a result significantly in excess of the amount sought by the applicant. It is a matter for the applicant as to whether she seeks to enforce the full amount which is not able to be determined without a consideration of the current financial circumstances of the fund in order to establish the member entitlements of each of the parties together with the impact of accrued interest.
However, the position of the applicant is that she seeks a declaration that she be entitled to an amount in the sum of $130,623 inclusive of the applicant’s member entitlements in the fund plus interest.
As discussed, the calculation of the respondent at paragraph 64 of the affidavit of 27 October 2023 included an interest component from 18 November 2015 to 10 August 2018.
Exercise of discretion
Section 105 of the Act provides:
(1)Subject to this Part, to the regulations and to the applicable Rules of Court, all decrees made under this Act may be enforced by any court having jurisdiction under this Act.
Rule 11.07 of the Family Law Rules provides for the “general enforcement powers of court” and includes that the Court may make an order declaring the total amount owing under an obligation (r 11.07(a)), to make an order for enforcement of an obligation to pay money (r 11.07(d)) or to stay the enforcement of an obligation (including an enforcement order) (r 11.07(h)).
Rule 11.09 has regard to the ability of the Court to discharge, suspend or vary an enforcement order in the following terms:
(1)A party to an enforcement order may apply to the court at any time to discharge, suspend or vary the order, by filing an Application in a Proceeding.

Neither party seeks that the Court exercise its discretion to discharge, suspend or vary including the enforcement of an obligation.
CONCLUSION
The applicant seeks that there be declarations made pursuant to r 11.07(a) and that the proceedings then be listed for hearing as to the appropriate orders to be made that would enforce the amounts as declared. In circumstances where I have found that there be a declaration that the respondent pay to the applicant the sum of $724,426 and that her final member entitlement in the fund is $130,623, I consider it appropriate for the matter to be listed for hearing to determine the balance of the orders sought in the applicant’s Enforcement Application together with the application of default interest, if any.
In anticipation of the further hearing, I propose to further order that each of the parties file a Financial Statement that complies with the provisions r 6.06 within 21 days.
I make orders as appear at the commencement of these reasons.

I certify that the preceding one hundred and eighty (180) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Berman.
Associate:
Dated: 7 February 2025

File number(s):	ADC 748 of 2014
Judgment of:	BERMAN J
Date of judgment:	7 February 2025
Catchwords:	FAMILY LAW – ENFORCEMENT – Where the wife seeks a declaration to enforce various paragraphs of a final Consent Order made in 2016 – Where the order provided that the husband pay the wife 60% of WIP received from the husband’s business – Where the wife contends the husband has collected at least $1.3 million in WIP – Where the husband asserts the order provides for a 60% payment of a reconciliation adjustment – Where there has been no reconciliation adjustment – Where the husband asserts the payment obligation has not crystalised – Where the Court finds that the Consent Order does not reference a “reconciliation” or “adjustment” payment – Where the wife seeks a declaration that she be entitled to a sum certain –Consideration of calculation of the WIP received by the husband – Where the husband has failed to provide requisite disclosure – Orders for the husband to pay the wife a sum certain.
Legislation:	Family Law Act 1975 (Cth) ss 81, 79, 105, 114 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) rr 6.01, 6.03, 6.06, 10.13, 11.07, 11.09 Family Law Rules 2004 (Cth) rr 1.04, 1.08
Cases cited:	Australian Competition and Consumer Commission v Adata (Vic) Pty Ltd (No 3) [2015] FCA 583 Catlin & Catlin [2017] FamCA 818 Catlin & Catlin [2018] FamCA 235 Edmunds-Jones Pty Ltd v Australia Women’s Hockey Association Inc [1999] NSWSC 1014 Harris v Calladine [1991] HCA 9 I limited & Chester & Ors (2010) FLC 93-456 Neame v Neame Trs [1956] SLT 57 Re McGorm; Ex parte Co-operative Building Society of South Australia [1989] FCA 87 Weir & Weir (1993) FLC 92-338
Division:	Division 1 First Instance
Number of paragraphs:	180
Date of hearing:	24-25 July & 9 and 11 December 2024
Place:	Adelaide
Counsel for the Applicant:	Mr Bullock
Solicitor for the Applicant:	Howe Jenkin
Counsel for the Respondent:	Mr Ower KC together with Ms Betro
Solicitor for the Respondent:	1878 Elix Lawyers

ADC 748 of 2014
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN:	MS CATLIN Applicant
AND:	MR CATLIN Respondent

ORDER MADE BY:	BERMAN J
DATE OF ORDER:	7 FEBRUARY 2025

Westpac CIT Account receipts	$295,110.13
NAB WIP Account receipts	$1,361,664.38
Form 524 remuneration amounts	$37,099.35
Form 5602 remuneration amounts	$92,575.07
TOTAL	$1,786,448.93
TOTAL EXC GST	$1,624,044.48

Base amount	$130,623.00
Interest at 6% for 997 days, from 18 November 2015 to 10 August 2018	$21,407.86
Less applicant’s member balance as at 30 June 2018	($74,355.21)
BALANCE	$77,675.65