DANBY & DANBY

[2015] FamCA 464

FAMILY COURT OF AUSTRALIA

DANBY & DANBY [2015] FamCA 464

FAMILY LAW – PROPERTY – Final property orders made by consent 13 January 2014 – Application by husband pursuant to s 79A(1)(a) of the Family Law Act 1975 (Cth) seeking a variation of property orders on the basis the wife supressed evidence – Application granted

Family Law Act 1975 (Cth) s 79A

APPLICANT: Mr Danby

RESPONDENT: Ms Danby

FILE NUMBER: DGC 3351 of 2011

DATE DELIVERED: 27 March 2015

PLACE DELIVERED: Melbourne

PLACE HEARD:

JUDGMENT OF: Benjamin J

HEARING DATE: 27 March 2015

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Wilson

SOLICITOR FOR THE APPLICANT: Marshalls & Dent

COUNSEL FOR THE RESPONDENT: In person

SOLICITOR FOR THE RESPONDENT:

Orders

1. Pursuant to s 79A(1) of the Family Law Act 1975 (Cth) the final property orders made 13 January 2014 by this Court in these proceedings (“the consent orders”) be and are varied as is provided in this order.

2. Order 5 set out in Exhibit “1” to the consent orders is varied to the effect that:-

   (a)within seven (7) days from the date of this order; in relation to order 5(a) of the said consent orders, the parties shall do all things and sign all documents to reappoint the husband as director of the D Pty Ltd (“the company”);

   (b)within a further period of seven (7) days; the wife shall resign as a director of the company and shall do all things and sign all documents to transfer to the husband all of her shares and entitlements in the company; and

   (c)in other respects order 5 set out in Exhibit “1” of the consent orders is confirmed.

1. Within twenty eight (28) days from the date of this order, the husband and the wife shall do all such acts and things and sign all documents as may be necessary to:-

(a)     re-appoint the company or any other another company reasonably nominated by the husband as Trustee for the Mr Danby Pty Ltd Superannuation Fund (“the SMSF”);

(b)    subsequent to fulfilment of subparagraph (a) of this order and forthwith upon request in writing from the husband, the parties shall do all acts and sign all documents to transfer legal ownership of I Street, Suburb J, Victoria being Certificate of Title … Folios … and … (“the Suburb J property”) from E Pty Ltd to the Trustee of the SMSF or at the husband’s option to the Trustee of the F Trust, noting that the husband is to appoint an alternate Trustee of the such Trust pursuant to Order 9(a) of the orders set out in Exhibit “1” to the consent orders; and

(c)     transfer all assets and resources of the F Investment Trust (including the funds referred to in Order 9(c) of the orders set out in Exhibit “1” to the consent orders) to the Trustee of the SMSF;

AND upon the above occurring:

(d)     the husband shall indemnify and keep indemnified the wife against all liability of or in relation to the Suburb J property the F Trust and the SMSF including stamp duty and other fees and taxes arising from such transfer of that real property; and

(e)the wife shall retain for her own use and benefit, the entity known as E Pty Ltd and indemnify and keep indemnified the husband in relation to that entity, as is provided for at paragraph 9(d) of the orders set out in Exhibit “1” to the consent orders.

1. Paragraphs 11 and 14 of the orders set out in Exhibit “1” to the consent orders be and are discharged.

1. In substitution for order 11 of the orders set out in Exhibit “1” to the consent orders; it is ordered:-

The base amount to be split to the husband out of the interest of the wife in the the SMSF pursuant to S90MT(4) of the Family Law Act 1975 is the difference between the wife’s current member entitlements and $182,233.69 (being $174,750 plus the sum of $7,483.69). The effect being that regardless of the wife’s current member’s balance, her balance following the split will be $182,233.69.

1. Order 13 of the orders set out in Exhibit “1” to the consent orders be and are varied to provide that the operative date for orders 11 and 12 of the splitting orders have effect from 27 March 2015.

1. In substitution for paragraph 14 of the orders set out in Exhibit “1” to the consent orders, it is ordered:

That upon the payment split being effected the wife shall direct the roll out her entitlement of $182,233.69 in the SMSF to an alternate complying fund of her choice.

That the wife shall direct her employers to cease paying employer superannuation contributions to the SMSF as and from 27 March 2015.

1. In all other respects the consent orders are confirmed.

1. All outstanding applications be and are dismissed with the exception of costs applications; which may be made in accordance with the Family Law Rules 2004, including by the timely filing of an application in a case supported by affidavit.

1. All subpoenaed documents be returned to the persons or institutions from which they emanated and all exhibits are to be returned to the person or persons who tendered the same at the expiry of the appeal period.

   IT IS CERTIFIED

2. Pursuant to Rule 19.50 of the Family Law Rules 2004 it was reasonable to engage counsel to attend.

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

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER:  DGC 3351 of 2011

Mr Danby

Applicant

And

Ms Danby

Respondent

REASONS FOR JUDGMENT

1. These are proceedings between Mr Danby (‘the husband’) and Ms Danby (‘the wife’). The proceedings were commenced by the husband by way of an amended application filed 22 August 2014. In that application, pursuant to s 79A(1)(a) of the Family Law Act 1975 (‘the Act’), the husband sought variation of the final orders made by consent in this Court on 13 January 2014, and I will refer to those as ‘the orders’.  The orders were thought by the parties to have resolved their property proceedings. 

2. The husband’s case before the Court this week was in its essence relatively simple.  He said that the wife had been the manager and financial controller of the various corporate trust structures and in essence, the finances of the parties during the course of their marriage and subsequent to their separation.  He said he trusted the wife.  During the course of the parties’ marriage, they had established a number of corporate entities, to which I will refer later. 

3. One part of the property which the parties had sought to divide was the proceeds of a self-managed superannuation fund.  The husband says that he believed that the fund had assets to the value of some $878,000 approximately.  The scope of the orders was that of that fund contained in the self-managed superannuation fund, $350,000 would be rolled out to a fund nominated by the wife, and the balance of about $528,000 would remain superannuation to which the husband was entitled. 

4. The husband said that the funds of the superannuation fund included monies in the Bendigo Bank of one form or another with a value of somewhere between $170,000 and $180,000.  He says that after the orders were made, he discovered that about $175,000 was transferred out of the superannuation fund and placed into the control or the ownership of another corporate structure, which was in turn, by reason of the orders, controlled by the wife.  This, he said, left him some $175,000 approximately less in superannuation than was envisaged, and that the wife’s property was essentially increased by that sum. 

5. The wife denied that this was the case, and said that the husband knew or ought to have known what money was involved, and that the figure of $878,000 was an estimate which could go up or could go down.  Her position was that the orders should remain as they were made on 13 January 2014.  Her alternate position was that if the Court concluded that on the evidence of the husband there ought to be a variation to the orders, then rather than a simple variation the whole of the property issues ought to be reopened and there ought to be a complete re-exercise of the Court’s discretion regarding property.

6. In these proceedings the wife had been represented until relatively recently, but in the hearing before me she was unrepresented.  This Court acknowledges the difficulties presented to a person acting for herself, and the Court had endeavoured and has endeavoured to enable her to present her case in a fair and thorough way. 

7. The husband was born in 1955 and is currently aged 60 years.  He is a medical professional by occupation, and apparently works in the Geelong area.  The wife was born in 1957 and is aged 57 years.  She works at a university.  She says her employment is insecure, as it runs from contract to contract.  She says that her qualifications are some 30 years old and, implicitly or explicitly, are of limited value. 

8. The parties commenced living together in about 1978, and in 1980 they married.  There are two children of the marriage, Mr B, aged 26, and Mr C, aged 25.  During the course of the marriage, the parties accumulated property, and there is some evidence that there was an advance by the wife’s father to her at one stage of about $35,000.  The wife claimed that this was a debt and was repaid by her after the property settlement after the orders were made.  There was an inheritance by the husband from his mother in 2006.  The husband asserted that the inheritance was some $272,000 approximately, and the wife asserted that this sum was $260,000. 

9. At the end of the hearing, probably not much rests on this difference in the circumstances to which I have to deal with.  The parties separated in about May 2010, and their marriage was dissolved by an order of a court in December 2011.  The property proceedings were commenced in January 2012, which is just over three years ago.  In May 2012, an interim spousal maintenance order was made in favour of the wife in the sum of $500 per week plus other expenses, and that was varied later that year to $800 per week. 

10. The property proceedings were listed for hearing before me on 13 January 2014.  At that time, each of the parties was represented by a barrister and solicitor, and the orders were made in that context.  The transcript of the application for the consent orders was tendered in evidence to me, that being Exhibit H3.  Those orders provided for the division of property, and that division of property was the subject of discussion before me and explanation to me.  The orders were Exhibit H1, and the transcript was Exhibit H3. 

11. The orders provided that the self-managed superannuation fund operated by and for the parties through a corporate and trust structure was to be retained by the husband. In addition there was an unusual order, order 11, that there was to be a sum rolled out to the wife of some $350,000. That unusual order was put in place, it seems, because the parties were unsure of the precise value of the assets contained in the fund. That fund, as I said, had in essence been managed by the wife over many years. As a consequence, attached to the orders were two notations. The first notation was that normal notation pursuant to s 81of the Act that the proceedings were at an end. From that notation, it was clear that the parties wanted the proceedings brought to an end. The second notation provided, and I quote:-

    (b)These Orders are premised on the Wife’s warranty that all of G’s units in the [F] Investment Trust have been transferred to the fund by way of contribution,

    and I emphasise “contribution”

    increasing the Fund’s assets from $591,145 as at 30 June 2011 (which included $278,100 of units held in the [F] trust) to E $878,000 plus any investment growth of non-[Suburb J] assets (which included the [F] units of $565,000). 

12. It is of value to understand the structure of the parties’ corporate and trustee vehicles which they used in managing their day to day and year to year finances.  The first and oldest of the structures was a company operated by the husband formerly called Mr Danby Pty Ltd, and now D Pty Ltd.  I will call it ‘the Family Company’.  This Company was the vehicle by which the income of the husband was paid during the course of the marriage and shortly after separation.  Following separation, the husband changed those arrangements and took the income direct so that the Company had no flow of income that had flowed through it in previous years.  The Family Company was also the trustee of the parties’ self-managed superannuation fund. 

13. In the mid-2000s, the parties wished to acquire a home unit at I Street, Suburb J, which they did.  That home unit was purchased by a company E Pty Ltd as trustee for the F unit trust.  That unit trust was established in March 2007, and it owns the home unit.  Part of the purchase price from that home unit came from monies of the parties contained in a trust, party to the money, and part of them came from the self-managed superannuation fund.  To do this lawfully, the F trust had some $435,000, approximately, units of which the units were partly owned by the self-managed superannuation fund, G, and the other were owned by G Pty Ltd as trustee for the H Family Trust. 

14. The family trust, pursuant to the January 2014 orders and the holding company, G Proprietary Limited, became the property of the wife.  The husband was aware that over the years, the superannuation fund was acquiring more and more units in the F trust, and slowly and effectively acquiring the whole of the interest in the home unit by acquiring the units in the unit trust.  In the first half of 2013, the wife had control of the superannuation fund and the unit trust.  She undertook a series of transactions, which was to transfer about $173,500 from the superannuation fund and, in consideration for that transfer out, assigned back units in the unit trust so that the superannuation fund acquired the whole of the units in the unit trust and essentially owned the whole of the equitable interest in the home units.  The $173,500 was in turn paid to G as trustee, presumably for the family trust.  These transactions are set out in the Bendigo Bank statement, which is Exhibit H9.  The wife then in her role of controlling G Pty Ltd lent the sum of about $203,000 from that company and/or trust to herself for 10 years at a low interest rate.  The details of that are contained in the wife’s evidence.  The wife gave further evidence that of that sum about $30,000 was then returned from her to G and is no longer a liability. 

15. The wife says that the transaction was a legitimate and appropriate acquisition of the units at value and that it was entirely appropriate.  The husband does not deny that there was no illegality tainting it.  It is the notice of which he complains.  He deposed that his view was that the units had been settled in the superannuation fund and not sold to the superannuation fund, thus increasing the valuation of the superannuation fund by that sum.  Subsequent to the settlement, the husband learned that the $175,000, approximately, had been transferred out of the superannuation fund and was now held as an asset by G Pty Ltd and essentially owned or controlled by the wife, given that that property remains hers pursuant to the settlement.  Thus, the husband said he is entitled to reduce the amount payable to the wife in terms of the superannuation by that approximate sum. 

16. The parties entered into further negotiations and the wife at that time changed her legal advisors.  The parties entered into an agreement, and, but for the agreement, those negotiations would normally have not come before me.  However, when the parties reached the agreement, they executed it, and the husband annexed a copy of that agreement to his 22 August 2014 affidavit, being Exhibit GD4.  That agreement provided that the wife retain the fund and pay $500,000 to the husband.  There were clearly two options available to the wife: one that she take $350,000 less approximately $175,000; or two that she take the fund and pay the husband out $500,000, the end result being roughly the same.  The agreement entered into in May 2014 was to that end. 

17. The husband’s position in this hearing was that he didn’t mind whichever way it went, whether the wife took the superannuation fund or whether she was paid $175,000 and he retained the fund and the real property contained in it.  As I said, from his perspective, the income would have been roughly the same.  The wife’s concern was that she did not want the property.  At one stage, the wife suggested that the property was worth more than the valuation which had been put before me, but she did not call any evidence to that extent, and it was open to her, if that was her view, to take the property.  She chose not to do so.  She made it clear to this Court that she wanted neither the fund nor the home unit.  She simply wanted the $350,000 rolled out of the fund into a superannuation fund nominated by her.

18. The other issue which was of concern to the husband related to the payment by the wife’s employer of the statutory superannuation to which the wife was entitled pursuant to her employment.  The wife conceded in evidence that it amounted from the date of the orders to the end of March 2015 to some $7,133.69.  It would have accumulated some interest, and the husband conceded the maximum at 5 per cent on that sum for the whole year would make a total of some $7,483.69.  The wife sought to repudiate the agreement entered into in May 2014 and did, in fact, repudiate the agreement, saying that she would be liable to unforeseen tax consequences which would adversely impact upon her. 

19. When these proceedings commenced, the husband’s accountant, Mr K, prepared a report saying that there were no such tax consequences which the wife raised.  The wife disputed this and employed a Mr L to assist her in that regard.  On my direction, Mr K and Mr L had a meeting on 20 March 2015 to discuss their various positions.  They agreed and concluded that the tax concerns raised by the wife were not as such as would give rise to liabilities, and the agreement was tendered as Exhibit H4 before me. 

20. In these proceedings, the husband relied upon:-

    (a)     his amending application filed 22 August 2014;

    (b)    his affidavits sworn 19 February and filed 20 February 2015, 22 August 2014, 12 December 2013, sworn 12 November and filed 13 November 2012, and sworn 23 January and filed 25 January 2012; 

    (c)    his financial statement filed 12 December 2013; 

    (d)    his financial statement filed in court during the proceedings; 

    (e)    the single expert evidence of:-

    (i)     Mr M of December 2013,

    (ii)    Mr N of 24 December 2013,

    (iii)   Mr O of 24 December 2013,

    (iv) Mr P filed 20 February 2015 being the valuation of the home unit as at 2012 despite the recency of the affidavit; and

    (f)     the affidavit of Mr K, the account, of 24 March 2015. 

21. The husband gave evidence in terms of his affidavits and statement of financial circumstances.  There were objections to parts of the husband’s affidavit, particularly in terms of the admission of the agreement.  I admitted the agreement for the reasons I gave during the course of argument.  Secondly, the terms of the assets held by the superannuation fund.  Parts of those affidavits were struck out, although the substance of what was said in those parts was later confirmed by the tender of documents from the trustee, being Exhibits H5, H6, H7, H8 and H9.  Further, the affidavit of Mr P provided evidence of the value of the home unit as at July 2012, which was apparently accepted by the parties for the purpose of the hearing in January 2014. 

22. The husband was frank in giving his evidence, but often seemed confused.  What was clear from his evidence and from his demeanour was that the business structures of the husband was something that the wife generally ran, to which the husband had little interest or knowledge.  He deferred to the wife and accepted that she was good at managing those structures.  The cross-examination by the wife established that the husband did not, even at this time, clearly understand those structures and further that, despite their marriage breakup, he had, at least until the events following 13 January 2014, trust of the wife. 

1. He said that the wife had not made full discovery.  He was cross-examined about why he didn’t go to the bank himself.   He answered, and in the circumstances reasonably, that having the bank account numbers did not help you understand what was going on when all of the documents were, in his view, controlled by the wife.  He was cross-examined as to why he did not go to the documents himself, and at this stage there was an interesting exchange.  The wife said words to the effect, “Why couldn’t you have gone and looked at the transactions through the paperwork?”  The husband said he did so on one occasion, and the wife had said to him, “What on Earth are you doing?”  As a consequence, he stopped looking.  The wife did not dispute this assertion in her evidence or in further cross-examination.  I find that the husband was ignorant of the details of the finances for the family and relied upon the wife for that information.

2. The wife sent an email to the husband on 9 December 2013 which is Exhibit GD3 to the husband’s affidavit of 19 February 2013.  That email contained the notice that:-

   …The superannuation fund now fully owns the apartment, final payment in June 2013.  …

3. The wife asserted that this was notice by her to the husband that she had through the various entities arranged for the superannuation fund to buy the units and to pay for those units.  She claimed that it was notice to the husband to which he should have been alerted to the transaction.  The husband’s solicitors wrote to the wife’s then solicitors in January 2014, this is Exhibit GD4 to the husband’s affidavit of 19 February 2015, asking for details of the supporting documents as to the change of ownership and requesting those before the hearing.  The wife gave evidence and made submissions that she provided this information to her lawyers.  However, there is no evidence that this was passed on to the husband, and, in fact, the only evidence is that it was not. 

4. I do know what the real circumstances were in terms of the communication between the wife and her then legal practitioners, but that is a matter for them, not a matter for this Court.  I make no finding or comment in relation to that, but it is clear that the transaction occurred in the 12 months before the hearing whereby those substantial funds were transferred to G and no notification of the detail of that transaction was given to the husband.  The cross-examination by the wife of the husband indicated her considerable knowledge and skills in respect of the family structures and the husband’s equally poor knowledge and skills in relation to those structures.  The husband’s evidence was generally reliable, and I accept that evidence on that basis.

5. The husband’s accountant, Mr K, gave evidence in accordance with his affidavit and was made available for cross-examination.  His qualifications were not challenged, although his objectivity was challenged.  He disputed that he was other than impartial.  It is clear there was great unhappiness between the wife and Mr K, and apparently on one occasion the wife turned up at Mr K’s office with a megaphone, and there have apparently been some formal proceedings between them in the Victorian Magistrates’ Courts. 

6. However, his views on the question of tax, which were the substance before me, were the subject of an agreement with Mr L, and as such I accept his evidence as being, in essence, uncontroversial.  The other evidence as to valuation of the properties referred to in the earlier part of these reasons was read into evidence without challenge. 

7. The wife’s case was somewhat difficult because at times she adopted a somewhat scattered approach, which, given that she was representing herself, was not unexpected.  She complained that an adjournment was refused on 13 January 2014, and that she had been asking her solicitors for some time in advance of that date to seek an adjournment.  No such application was made until the day, and that application was apparently unsuccessful.

8. She could have allowed at that time the matter to go to hearing, or could have challenged the determination on the adjournment.  She did not do so.  The wife says she was stressed on 13 January 2014, and there was uncontradicted evidence by her witnesses, including her friend, her psychiatrist, and her psychologist.  I have no doubt that she was stressed at that time, but that has to be seen in the light that:-

   (a)the wife does not wish to disturb the orders that she entered into at that time, and that is her primary position; and

   (b)that the wife was represented by counsel and a solicitor at that time.

9. The wife relied upon her affidavit filed 12 January 2015 and 19 September 2013.  That material was read into evidence.  The wife confirmed her primary position was that the orders should remain in force.  The wife also provided a notice to the husband’s lawyers the night before the hearing commenced that she changed the trustee of the superannuation fund from the family company to E Proprietary Limited, and to that extent see Exhibit H2.  This was a somewhat quizzical step, as it was the wife’s case that she did not want the superannuation fund, and that continued throughout, and it is clear that E was to be retained by her.  She was cross-examined as to why she had done so and she was at times non-responsive, or she prevaricated in her answers. 

10. Some of the evidence of the wife was troubling.  She wanted control but she did not want the assets, and had trouble explaining the rationale behind that.  As I said earlier, the wife agreed that some $7,133.69 was paid by her employers into the superannuation fund.  The wife asserted that this Court has not looked into the books, the companies, or structures, and to this Court that she had not looked into the books or company structures for some 18 months prior to January 2014.  That could hardly be the case.  The wife had prepared schedules for her solicitors and took those to Court, which were contained in the exhibits to her 19 September 2014 affidavit.

11. It is clear that she was operating, at least in terms of the superannuation fund, and some of the other companies and trusts, with regard to the transactions to which I had referred to, and are reflected in the money transfers set out in Exhibit H9.  I have some concerns about the reliability of her evidence, and I will treat it with some caution. 

12. The transactions whereby the wife transferred some $175,250 from the superannuation fund to G Holdings Proprietary Limited were done where there was no notice of the detail of those transactions given to the husband prior to the execution and prior to the making of the consent orders.  It may well be that there was some notice of loans, but certainly not of the transfer of funds.  In relation to the wife’s assertion that she wasn’t dealing with the structures, one simply has to look at the transactions referred to in Exhibits JD3, JD4, of the wife’s affidavit.

13. The wife’s evidence was that the capital “E” in the notation was put because the sum of $878,000 was provided in estimate because the parties weren’t aware of the sum.  This is certainly the case in terms of the husband, that he was not aware of the funds, although I accept he had a clear understanding of what he thought the primary basis of those assets were.  It is clear that the wife knew that significant amounts had been removed or cash amounts had been transferred out of the fund, and I do not accept her evidence to the contrary.  The wife relied upon the affidavit as to her health by Dr Q, the evidence of Mr L, the evidence of Ms R, the evidence of Mr S, the wife’s psychotherapist, and Dr T, the psychiatrist who provided evidence.  All of that evidence was read in and was accepted controversially. 

14. The process I adopted in this matter was that I would first determine whether section 79A should apply, as sought by the husband.  I am satisfied that there was suppression of evidence by the wife.  That suppression of evidence was a clear repudiation of the warranty contained in the orders, in that: one the wife warranted that the transfer of the unit to the unit trust was a contribution – she asserted it was a sale but warranted it was a contribution; and two she asserted that the superannuation fund had assets of some $878,000 approximately, but had transferred $170,000 to $180,000 from that fund. 

15. The impact of the warranty is significant, and to that end I note the comments and adopt the comments of the plurality of the New South Wales Court of Appeal in Delaforce & Simpson-Cook [2010] NSWCA 84, 20 July 2010. It was in the context of determining that I asked the wife what should happen to her superannuation entitlements if I decided not to set aside the variation. She said she would not pursue those. That was clearly a matter for her. If on the other hand I determined there was a concern pursuant to s 79A raised by the husband, I could do one of two things: one I could vary the orders as is sought, and the only real available option for me in relation to that, given the wife’s position, was that he retain the funds and pay an amount to the wife less than the $350,000 which was envisaged, or secondly I could allow the parties to produce updated valuation evidence, further substantive evidence, and have a further full hearing of the property proceedings. I considered that, and in doing so considered the finances of the parties, the agreement that they entered into, and the various valuations that were put in evidence for me.

16. I am satisfied, as I said, that the wife knew those funds had been transferred to the superannuation fund and had warranted the husband not about the sale, which in fact occurred, but about a contribution.  She did not inform the husband of the sale.  The wife warranted that the value of the fund was some approximately $878,000 and it was upon those warranties that the husband entered into the agreement, and upon which they were premised.  He is entitled to accept and rely upon those warranties, and that failure to disclose that change was in breach of the warranties that were given. 

17. Section 79A(1)(a) allows the Court to vary an order by way sought by the husband by reason of suppression of evidence, and as I said, I found there was a suppression of evidence. I have given some, but not overwhelming, weight to the agreement that was entered into in May of last year. Without that agreement I would have, in any event, varied the order or the agreement of May of last year. It is significant and adds to the overwhelming evidence that there had been a suppression of evidence.

18. I accept as a matter of fact that at the round table conference on 16 May 2014, the parties signed minutes of orders which were attached to the husband’s affidavit.  They are erroneously dated 2 May 2014.  I am satisfied that there ought to be a variation of the orders.  As I said, I considered whether I ought to open the whole of property to broader reconsideration.  I have had regard to the principles set out in Prowse & Prowse (1995) FLC 92-557 and Abdo & Abdo (1989) FLC 92-013, and given the circumstances of this case, and the way this arose, and the agreements into which the parties entered, in exercising my discretion in that regard I have decided that it is not warranted to have a full re-exercise of the property. All I am doing, in essence, is putting into place that which the parties negotiated at that time. If there was some issue between the wife and her then legal practitioners, that is a matter for them and not the husband.

19. The husband’s submissions were that it was a relatively simple transfer of assets, which could have been divided to assets in the hands of the wife, being that sum of approximately $175,000.  I will make the order reducing the amount to the wife, but I will add back the sum of $7,483.69 and I will make orders to require the wife to ensure that the family company is returned as trustee of the superannuation fund, or some other company as reasonably nominated by the husband.

20. The husband seeks an order that the real estate be placed in the name of the fund.  I am content to do so, as it is not any meaningful change, but it gives effect to the meaning of the orders from last year in any event.

I certify that the preceding forty two (42) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Benjamin delivered on 27 March 2015.

Associate:     

Date:              27 March 2015