Corby & Corby
[2022] FedCFamC2F 1475
•15 November 2022
Federal Circuit and Family Court of Australia
(DIVISION 2)
Corby & Corby [2022] FedCFamC2F 1475
File number(s): MLC 4922 of 2022 Judgment of: JUDGE GLASS Date of judgment: 15 November 2022 Catchwords: FAMILY LAW – PROPERTY - UNDEFENDED – 16 year marriage – where the wife seeks to alter the parties’ property interests – where husband elects not to participate in proceedings – where wife seeks addback to assets available for distribution – where the husband failed to disclose his financial affairs – where evidence may be taken into account absent objection – whether the conduct of the husband had a discernible impact upon the contributions of the wife – where it is just and equitable to make an order when there is no longer common use of property by the parties Legislation: Family Law Act 1975 (Cth) ss 79(2), 79(4)(a-c)(e), 75(2), 81, 106A, 90XT(1)(a), 90MZA
Family Law (Superannuation) Regulations 2001 Part 6
Cases cited: Benson & Drury (2020) FLC 93-998
Cornett & Hext (2021) FLC 94-067
Crick & Bennett (2018) FLC 93-832
Duarte and Anor and Morse (2019) FLC 93-902
Isles & Nelissen (2022) FLC 94-092
Kennon & Kennon (1997) FLC 92-757
Kingston & Field (No 2) (2020) FLC 93-986
AJO & GRO (2005) FLC 93-218
Re Bain (deceased) (2017) FLC 93-772
Sabrosky & Putnam (2018) FLC 93-834
Stanford v Stanford (2012) 247 CLR 108
Trevi & Trevi (2018) FLC 93-858
Division: Division 2 Family Law Number of paragraphs: 32 Date of last submission/s: 27 October 2022 Date of hearing: 27 October 2022 Place: Melbourne Counsel for the Applicant: Mr Eley Solicitor for the Applicant: Aitken Partners Self-represented: Mr Corby ORDERS
MLC 4922 of 2022 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MS CORBY
Applicant
AND: MR CORBY
Respondent
order made by:
JUDGE GLASS
DATE OF ORDER:
15 November 2022
THE COURT ORDERS THAT:
1.The Wife have the sole conduct of the sale of the property situated at and known as B Street, Suburb C (“the B Street, Suburb C property”), including but not limited to appointing the selling agent and conveyancer and nominating the terms and conditions of sale including but not limited to determining the reserve price for the B Street, Suburb C property.
2.The parties take all necessary steps and execute all necessary documents to comply with the requests and/or demands of the selling agent including:
(a)Making the key available to the selling agent;
(b)Facilitating an inspection of the B Street, Suburb C property at all reasonable times requested by the selling agent;
(c)Not doing or saying anything to hinder or prevent a sale; and
(d)Ensuring the B Street, Suburb C property is in a neat and clean condition at the time of inspection by the selling agent and prospective purchasers.
3.Each parties’ solicitors are to be copied into all correspondence with the selling agent.
4.Pending the sale of the B Street, Suburb C property:
(a)The parties are restrained from further encumbering the B Street, Suburb C property or allowing it to be encumbered or charged by any third party, save and except for the purpose of compliance with these Orders; and
(b)The Husband indemnify and keep indemnified the Wife with respect to mortgage repayments, rates, utilities and all other such related expenses.
5.Upon sale of the B Street, Suburb C property, the proceeds of sale be disbursed in the following manner and priority:
(a)Firstly to pay the costs, commissions and expenses of the sale;
(b)Secondly, to discharge the mortgage secured in favour of Bank D; and
(c)Thirdly, the balance to the Wife.
6.Pursuant to section 106A of the Family Law Act 1975 (Cth), the Wife be appointed to execute all documents on behalf of the Husband for the purposes of effecting the sale of the B Street, Suburb C property, including but not limited to signing:
(a)The client authorisation form required to authorise Aitken Partners to transfer the B Street, Suburb C property to the purchasers via the Property Exchange Australia platform (PEXA) in settlement of the sale;
(b)Any requisite discharge of mortgage forms to effect settlement of the sale;
(c)Any requisite State Revenue Office forms required to be completed by the Husband to effect the settlement of the sale;
(d)Any requisite Transfer of Land document required by the Registrar of Titles; and
(e)Any requisite Transfer of Lease and/or Licence document required to effect settlement of the sale;
provided that such documents are signed by the Wife so as to effect settlement of the sale.
7.For the purpose of paragraph 6 hereof and to effect the sale, the Husband shall be excused from providing documents verifying his identity and that a certified copy of these Orders be attached to a client authority or any other documents required on behalf of the Husband to effect settlement of the B Street, Suburb C property through PEXA and in accordance with the requirements of ARNECC (Australian Registrars National Electronic Conveyancing Council).
8.Pursuant to section 90XT(1)(a) of the Family Law Act 1975 (Cth) the Wife be paid a base amount of $32,500 from the Husband’s interest in Super Fund E (“the Fund”), calculated in accordance with Part 6 of the Family Law (Superannuation) Regulations 2001 (“the Regulations”) and there be a corresponding reduction in the entitlement the Husband would have in the Fund but for this Order.
9.The operative time referred to in Order 8 is four (4) business days from the service of a sealed copy of the Final Orders on the Trustee and Administrator of the Fund, Super Fund F (“the Trustee”).
10.Until the happening of:
(a)The establishment of a separate account in the name of the Wife in the Fund, and the transfer or rolling over into another superannuation fund of the payment split created by paragraph 8; or
(b)The Wife satisfying a condition of release and being paid the payment split created by paragraph 8; or
(c)The Wife executing a waiver of rights within the meaning of Section 90MZA of the Act regarding the payment split created by paragraph 8;
the Husband is hereby restrained by himself, his servants and/or agents from executing a death benefit nomination in favour of any person or doing any act or thing which would render any part of his interest in the Fund a “non splittable payment” within the meaning of Regulations 12, 13 and 14 of the Regulations.
11.Pending the payment in Order 8, the Husband by himself, his servants and/or agents be restrained from encumbering, disposing of or otherwise dealing with his interest in the Fund and/or from doing any act or thing which would prevent the Wife, her heirs, her executors, her administrators, or nominees from receiving the benefit of the Fund to which she is entitled pursuant to these Orders.
12.That Orders 8 to 11 inclusive are binding on the Trustee of the Fund.
13.The parties forthwith do sign all documents and do all things necessary to roll out the Wife’s interest in the Super Fund G self-managed superannuation fund into a superannuation fund of her choice.
14.Within fourteen (14) days of the date of these Orders, the Wife sign all documents and do all things necessary to resign as a member/trustee from Super Fund G.
15.Contemporaneously with paragraph 14, the Husband sign all documents and do all things necessary to appoint a new trustee for the Super Fund G.
16.The Husband be solely liable for and indemnify and keep indemnified the Wife with respect to any liabilities including tax liabilities arising from Super Fund G;
17.Within fourteen (14) days of the date of these Orders, the Husband make available to the Wife her Motorbike currently in storage.
18.Unless specified in these Orders and save for the purposes of enforcing any monies due under these or any subsequent Orders,
(a)Each party will be solely entitled to the exclusion of the other to all other property (including superannuation and choses in action) in the possession, power, control or name of such party as at the date of these Orders;
(b)Monies standing to the credit of the parties in any bank account are to become the property of the party in whose name the account is registered;
(c)Insurance policies remain the sole property of the owner named thereon;
(d)Each party be solely liable for and indemnify the other against any liability encumbering any item of property to which that party is entitled pursuant to these Orders; and
(e)Any joint tenancy of the parties is hereby expressly severed.
19.All extant applications 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 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish 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 the pseudonym Corby & Corby has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
JUDGE GLASS:
Ms Corby and Mr Corby commenced cohabitation in 1997, were married in 2001 and finally separated in October 2017. They were previously separated for a period of 9 months in 2008. They have three children, Mr H, born in 1998, Mr J, born in 2000, Mr K, born in 2002 and X, born in 2005. The children are now aged 24, 22, 20 and 17 years respectively.
Arising for determination is Ms Corby’s application for orders altering the parties’ interests in property. Ms Corby broadly seeks orders providing for the distribution of the value of the parties’ non-superannuation assets in the proportions of 70% to her and 30% to Mr Corby through the distribution of the sale proceeds of the parties’ former matrimonial home. She also seeks a superannuation split from Mr Corby’s interest in the Super Fund E fund of $32,500. The particulars of her application are contained in her Amended Initiating Application filed 29 August 2022 as amended orally during the hearing.
Although Mr Corby has filed a Response, he therein seeks no orders. When asked by the Court to identify the orders that he sought, he was neither able to point to them in a document, nor articulate what they were. He declined multiple opportunities to participate in the hearing having read a statement in which he appeared to contend that he is not subject to the Court’s jurisdiction. The basis for any such suggestion was not sensibly articulated by him and I am satisfied that the Court has jurisdiction to hear and determine Ms Corby’s application. He appears to suggest that what he contends to be a prior agreement between the parties to equally distribute the proceeds of sale of the former matrimonial home, should be upheld. Mr Corby did not avail himself of a further opportunity at the conclusion of the hearing to make any further submissions.
Statutory framework
Pursuant to section 79 of the Family Law Act 1975 (Cth) (“the Act”), I have a discretion to make such order altering the parties’ interests in property as I consider appropriate. I am prohibited from making an order unless I am satisfied, in all the circumstances, it is just and equitable to do so.[1] If I am so satisfied, I am required to consider the matters prescribed by subsection 79(4) of the Act and by the device of paragraph 79(4)(e), relevant matters referred to in subsection 75(2) of the Act.
[1] Family Law Act 1975 (Cth) s 79(2).
Property interests
It is necessary to begin by identifying, according to common law and equitable principles, the existing legal and equitable interests of the parties in property.[2] For reasons that follow, I find those interests comprise the following:
[2] Stanford v Stanford (2012) 247 CLR 108 (“Stanford”) at [37].
Asset O'ship Value B Street, Suburb C Jt $800,000 Less mortgage Jt ($293,440) Bank L Accounts W $223 Motor Vehicle 1 W $6,700 Motor Vehicle 2 W $4,500 Caravan W $1,000 Addback of value of silver and gold H $60,000 Cars H $7,000 Bus H $40,000 Total non-superannuation interests $625,983 Super Fund E superannuation H $46,669 Super Fund G self-managed superannuation H $157,996 Super Fund G self-managed superannuation W $35 Other superannuation interests W $22,009 Total superannuation interests $226,709 Total property interests $852,692
Ms Corby sought to “addback” to the assets available for distribution, cash withdrawn by Mr Corby totalling $97,370 from August 2020 until December 2021. Those funds were withdrawn from the account into which his wages were being paid. The evidence does not establish that the funds existed at the time of separation. It is well established that addbacks are exceptional.[3] The asserted addback does not fall within any of the three recognised clear categories.[4] I decline to addback funds expended by Mr Corby from his post-separation income.
[3] Cornett & Hext (2021) FLC 94-067 at [48]; Trevi & Trevi (2018) FLC 93-858 (“Trevi”) at [29].
[4] Trevi at [27]; AJO & GRO (2005) FLC 93-218 (“AJO & GRO”) at [30]
Ms Corby contends that the parties had a joint interest in a collection of silver and gold which she estimates to be valued at $60,000. However, her evidence is that she believed Mr Corby “may have sold” the collection due to his representations to her.[5] That evidence is inconsistent with her establishing on the balance of probabilities that Mr Corby still owns or possesses the collection. When the issue was raised with her counsel, it was submitted that the value of the collection could be added-back to the value of the parties’ other interests in property. I am satisfied that any disposal of the collection comprises a premature distribution of matrimonial assets which is a recognised category of an addback.[6] In circumstances where Mr Corby has made no disclosure of his financial affairs, I am satisfied that the circumstances are exceptional and warrant the value of the silver and gold collection being added back.
[5] Applicant’s Affidavit filed 12 October 2022, paragraph 49.
[6] AJO & GRO at [30].
The parties are both members and trustees of the Super Fund G self-managed superannuation fund. Ms Corby contended that the fund should be valued at $200,000. No financial returns for the fund are available after 30 June 2016. Ms Corby’s estimate of the increased value in the fund is entirely speculative. I consider it appropriate, in circumstances where both parties are members of and trustees for the fund, to treat their current interests as they were last valued on 30 June 2016.
The other assets and values are asserted by Ms Corby without contradiction from Mr Corby. Whilst her opinion as to their value is strictly inadmissible, such evidence may be taken into account absent objection to it.[7] By Mr Corby declining to participate in the hearing, he deprived himself of the opportunity to object to, or challenge, Ms Corby’s evidence. I accept Ms Corby’s unchallenged and uncontradicted evidence which is neither inherently improbable nor inherently incredible.[8]
[7] Isles & Nelissen (2022) FLC 94-092 at [98] and the cases there cited; Crick & Bennett (2018) FLC 93-832 at [57].
[8] Bain & Bain (deceased) (2017) FLC 93-772 at [112] and the cases there cited.
Justice and equity
Ms Corby seeks an alteration of the parties’ property interests in order to finally determine the financial relationships between them.[9] The parties are the joint proprietors of the B Street, Suburb C property which has been sold. It would be unjust and inequitable not to sever their joint interests and contrary to the Court’s obligation to do so.[10] I consider it to be just and equitable to make a property settlement order because there will no longer be the common use of property by the parties.[11]
[9] Family Law Act 1975 (Cth), s 81.
[10] Duarte & Anor & Morse (2019) FLC 93-902 at [486].
[11] Stanford at [42].
Contributions
I am required to take into account the parties’ financial and non-financial, direct and indirect, contributions to the acquisition, conservation or improvement of property.[12] I am also required to take into account the parties’ contributions to the welfare of the family.[13]
[12] Family Law Act 1975 (Cth), s 79(4)(a-b).
[13] Family Law Act 1975 (Cth), s 79(4)(c).
At the commencement of the relationship, Ms Corby did not have assets of significant value. Mr Corby then had assets of $7,500 comprising a severance package from his former employer which funds were applied as the deposit to the parties’ first home.
Ms Corby was initially employed on a full time basis as an admin officer with the Employer M earning approximately $30,000 per annum. She ceased employment when Mr H was born in 1998. She was then primarily responsible for the care of the parties’ children. In 2009, she obtained permanent part time work at an average rate of approximately $16,500 per annum.
Mr Corby was employed as a tradesman and worked at the Employer N from around 2007 until March 2017. He then received a redundancy of approximately $70,000 which was applied to the family’s expenses.
In around April 2009, the parties purchased the B Street, Suburb C property for $330,000. The deposit was funded from joint savings and a bushfire grant from the government. Mr Corby’s parents provided initial security for the property acquisition, which security was removed in 2011 upon the parties’ refinancing their home loan.
After the parties’ separation, the parties’ three youngest children continued to live with Ms Corby and spent no time with Mr Corby. She has accordingly been solely responsible for their care for the 5 years that have since elapsed, albeit only X now remains under the age of majority. Mr Corby has been in occupation of the former matrimonial home throughout that period.
Mr Corby perpetrated family violence towards Ms Corby and the children. In 2002, he threw a phone at a wall and pushed her whilst she held Ms K and subsequently ripped the phone cord out of the wall whilst she was speaking to Police. In around 2006 or 2007, when she attempted to leave the property with the children, he lay behind the car and refused to move. In 2008, he punched a glass window with his fist and subsequently breached an Intervention Order obtained by Police by visiting Ms Corby’s home at odd times and throwing rocks at the front door and on the roof. In 2008, he asked whether Ms Corby still loved him, advising her he had a shotgun in his car. Police subsequently seized his firearm and located explosives and a suicide note in his house. In 2014, he threw Mr J into a pantry door. In 2017, he smashed every dish in the children’s bedrooms. In June 2017, he punched Ms Corby’s thigh causing a significant lump and bruising. In October 2017, around the time of separation, he hit Mr J over the head with an electrical cord and smashed plaster walls in the house.
Ms Corby considers Mr Corby’s violence and controlling behaviour limited her ability to work and earn an income. He refused to assist with household chores or parenting duties resulting in Ms Corby withdrawing from tertiary study. He constantly called and followed Ms Corby when she was out of the house, constantly surveilling her and questioning her whereabouts. She did not trust Mr Corby to care for the children when she worked.
Whilst Mr Corby’s conduct certainly constitutes significant family violence, I am not satisfied the evidence establishes that he engaged in a violent course of conduct that had a significant adverse impact upon Ms Corby’s contributions or made them significantly more arduous than they ought to have been.[14] I am not satisfied that the conduct has had a sufficiently discernible impact on Ms Corby’s contributions.[15]
[14] Kennon & Kennon (1997) FLC 92-757 per Fogarty & Lindenmayer JJ at 84,294.
[15] Benson & Drury (2020) FLC 93-998 at [18].
On balance, taking into account the parties’ myriad of contributions over their lengthy relationship, and particularly Ms Corby’s contributions by way of being the sole care provider for the parties’ younger children after separation, I assess Ms Corby’s contributions at 55% of the value of the parties’ interests in property and Mr Corby’s at 45%. In dollar terms, Ms Corby’s contribution is assessed to be $85,269 more than Mr Corby’s. I consider it appropriate to assess those contributions to the entirety of the asset pool given the length of the relationship and the failure by Mr Corby to disclose his financial affairs.
Paragraphs 79(4)(d, e, f and g) and subsection 75(2) factors
Ms Corby is 54 years of age. She is self-employed as an allied health worker from which she derives income of approximately $35,000 per annum.
Mr Corby is 48 years of age. He is a tradesman and was previously employed on a full-time basis as a tradesman. Prior to the COVID-19 pandemic, he earned approximately $150,000 to $200,000 per annum. In August this year, he told Ms Corby that he had been offered a job but would not be accepting it to avoid her claiming money off him.
Ms Corby is solely responsible for the care of X who will turn 18 years old next year. Mr Corby pays no child support.
Mr Corby has made no disclosure of his financial affairs despite being ordered to file a Financial Statement and having been requested to provide disclosure by Ms Corby’s solicitors in accordance with the Court’s rules. In those circumstances, property settlement orders may make more generous provision for Ms Corby,[16] and I am entitled to take a robust approach.[17] I conclude that he has a significant earning capacity of the same magnitude as his previous income.
[16] Kingston & Field (No 2) (2020) FLC 93-986 at [106] and the cases there cited.
[17] Sabrosky & Putnam (2018) FLC 93-834 at [32].
On balance, I consider that an assessment of the relevant factors leads to an adjustment in Ms Corby’s favour of 12.5%, creating a further differential between the parties’ respective positions of $213,173.
Conclusions
Overall, those conclusions result in an outcome whereby Ms Corby ought retain assets worth 67.5% of the overall value of the parties’ assets, being a total sum of $575,567. Mr Corby ought retain assets worth 32.5% of the overall value of the parties’ assets, being a total sum of $277,125. The difference between the parties’ ultimate positions would accordingly be $298,442.
Ms Corby currently has assets, including superannuation, worth $34,467. She proposes a superannuation split of $32,500 from Mr Corby’s Super Fund E interest. She accordingly needs a further $508,600 to make up her entitlement, which is marginally more than the equity in the B Street, Suburb C property of $506,560. She did not seek a payment from Mr Corby over and above the proceeds of sale of the property and I consider it would be procedurally unfair to him to require a payment of the marginal difference. I accordingly consider it to be just and equitable for Ms Corby to retain the totality of the proceeds of sale without further payment from Mr Corby.
Whilst Mr Corby’s entitlement will be primarily comprised of his self-managed superannuation interest, it is likely that interest is significantly undervalued given the time that has elapsed since it was last valued. Absent any disclosure of his financial position to the Court, I am satisfied that the overall outcome is just and equitable.
Ms Corby seeks to have sole conduct of the completion of the sale of the B Street, Suburb C property, including to be appointed to sign documents on behalf of Mr Corby, and proposes orders facilitating the sale and ensuring the preservation of its equity. Given Mr Corby’s failure to participate in these proceedings, I consider the relief sought to be appropriate. Ms Corby seeks the return of her motorbike which order I also find to be appropriate.
Ms Corby proposes that she roll out her member benefit in the self-managed superannuation fund and resign as a trustee of the fund. Mr Corby seeks to retain the fund and agreed to appoint a new trustee for it. Given the fund overwhelmingly comprises his member benefit, the fact that he solely managed the fund and has failed to make financial disclosure, I consider it appropriate that he indemnify Ms Corby with respect to any liabilities relating to the fund.
Whilst Ms Corby proposes two sets of orders that otherwise provide for the parties to retain the respective assets in their name, I consider the latter iteration to sufficiently cover the field so as to warrant the earlier version redundant, subject to the inclusion of superannuation interests.
It is unnecessary to make orders granting the parties liberty to apply with respect to the implementation of these Orders.
I certify that the preceding thirty-two (32) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Glass. Associate:
Dated: 15 November 2022
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