Danyon & Danyon

[2021] FCCA 1400

FEDERAL CIRCUIT COURT OF AUSTRALIA

Danyon & Danyon [2021] FCCA 1400

File number:

MLC 10777 of 2020

Judgment of:

JUDGE O'SHANNESSY

Date of judgment:

3 May 2021

Catchwords:

FAMILY LAW – Property Division – undefended hearing where the husband had multiple opportunities to engage with court proceedings – duty of financial disclosure not adhered to by the husband – wife complied with full and frank financial disclosure – wife sought property division of 50 per cent – costs order made whereby the husband pay the wife the fixed sum of $7,000 to be paid from the proceeds of sale.

Legislation:

Family Law Act 1975 (Cth), ss 75(2); 79; 106A; 117

Cases cited:

Black & Kellner (1992) FLC 92-287

Weir & Weir (1993) FLC 92-338

Number of paragraphs:

45

Date of hearing:

3 May 2021

Place:

Melbourne

Counsel for the Applicant:

Ms A Finemore

Solicitor for the Applicant:

Wightons Lawyers

The Respondent:

No appearance

ORDERS

MLC 10777 of 2020

BETWEEN:

MS DANYON

Applicant

AND:

MR DANYON

Respondent

ORDER MADE BY:	JUDGE O'SHANNESSY
DATE OF ORDER:	3 MAY 2021

THE COURT ORDERS THAT:

Sale of B Street, Suburb C

1.The real property situate at and known as B Street, Suburb C being the whole of the land more particular described in Certificate of Title Volume … Folio …  ("the B Street, Suburb C property") shall be forthwith placed upon the market for AND sold ("the sale").

2.By way of consequential arrangements for the purposes of effecting the sale:

(a)The parties shall do all acts and things and sign all documents as may be required to list the B Street, Suburb C property for sale within 7 days of the date of these Orders ("the date") with such Real Estate Agent as may be agreed between the parties and failing agreement, D Real Estate or such other agent as may be appointed by the Wife ("the Real Estate Agent");

(b)The conveyancer to be retained for the purposes of the sale shall be as agreed between the parties within 7 days of the date and failing agreement, as nominated by the Wife;

(c)The listing price for the B Street, Suburb C property shall be as agreed between the parties within 7 days of the date of these Orders and failing agreement, as determined by the Wife in consultation with the Real Estate Agent; and

(d)Subject to paragraphs 3 and 4 herein, the method of sale for the B Street, Suburb C property shall be as agreed between the parties within 7 days of the date, and failing agreement, as recommended by the Real Estate Agent.

3.In the event the B Street, Suburb C property is not subject to a contract of sale within twelve (12) weeks of the date ("the private sale date") and unless otherwise agreed between the parties, in writing, the parties shall do all such acts and things and sign all such documents as may be necessary to procure a sale of the B Street, Suburb C property by public auction ("the first auction") upon the following terms:

(a)The auctioneer shall be appointed by the Real Estate Agent;

(b)The auction shall take place within four (4) weeks of the private sale date; and

(c)The reserve price for the first auction shall be as agreed between the parties and failing agreement, as determined by the Wife.

4.In the event that the B Street, Suburb C property is not subject to contract of sale within fourteen (14) days of the first auction, and unless otherwise agreed between the parties, in writing, the parties shall do all acts and things and sign all such documents as may be necessary to facilitate a second action within a further six (6) weeks of the first auction, upon the same terms and condition as applied to the first auction SAVE THAT the reserve shall no less than $50,000 less than the reserve that was placed on the first auction and the property shall be sold to the highest bidder ("the second auction").

5.The parties forthwith co-operate in every way with all reasonable request made by the Real Estate Agent including (without limiting the generality of the foregoing):

(a)The Husband shall make a key available to Real Estate Agent within seven days of the date of these Orders;

(b)The Husband shall allow inspection of the B Street, Suburb C property at all reasonable times requested by Real Estate Agent; and

(c)The Husband shall ensure that the B Street, Suburb C property, including the grounds, are in a neat and clean condition at the time of inspection by the agent and prospective purchasers.

6.Within 72 hours of being requested to do so, the parties shall:

(a)Sign all documents as reasonably requested by the Real Estate Agent in relation to the listing of the B Street, Suburb C property for sale, except a contract or agreement for sale which has not been authorise by the Conveyancer; and

(b)Execute a contract for sale in the form prepared by the Conveyancer having the conduct of the sale, stating the sale price agreed upon by the parties and failing agreement as nominated by the Wife.

Proceeds of sale of the B Street, Suburb C property

7.Upon the settlement of the sale of the B Street, Suburb C property, the sale proceeds shall be applied as follows:

(a)Firstly, to pay all costs, commissions and expenses of the sale;

(b)Secondly, to discharge the mortgage registered against the B Street, Suburb C property in favour of the Australia and New Zealand Banking Group Ltd, being registered mortgage number … ('the B Street, Suburb C mortgage");

(c)Thirdly, such sum to the Wife that results in her receiving 50% of the parties' non-superannuation total net assets as listed in Schedule "A" hereto; and

(d)Fourthly, such sum to the Husband that results in him receiving 50% of the parties' non-superannuation total net assets as listed in Schedule "A" hereto.

Arrangements pending the sale

8.Pending the settlement of the sale of the B Street, Suburb C property:

(a)The Husband shall have the sole right to occupy the B Street, Suburb C property;

(b)The Husband pay all instalments pursuant to this the B Street, Suburb C mortgage and all municipal and water rates, taxes and all apportionable outgoings of and with respect to the B Street, Suburb C property as and when the fall due and shall indemnify the Wife in relation to same;

(c)The parties by restrained, by injunction, from increasing the B Street, Suburb C mortgage balance and/or further encumbering the B Street, Suburb C property in any manner or form or allowing it to be encumbered or charged by any third party, including but not limited to their legal practitioners, save and except for the sole purpose of complying with these Orders; and

(d)The parties shall continue to hold their interest in the B Street, Suburb C property until such time as the property has been sold upon trust pursuant to these Orders.

Joint accounts

9.In the event the Husband fails to comply with paragraph 8(b) herein, then 50% of any amounts he should have paid pursuant to these Orders shall be reimbursed to the Wife from the funds payable to the Husband pursuant to paragraph 7(d) herein.

10.Within seven days of the date of these Orders, the parties do all such acts and things and sign all such documents as may be necessary to distribute any balance in any bank accounts held jointly by the parties, equally between the parties, and close said accounts.

Other property

11.THAT the Husband retain the following assets, to the exclusion of the Wife, with said assets to form part of the Husband's entitlements in the matrimonial asset pool for the purpose of paragraph 7(d) herein:

(a)Share portfolio valued at $32,000;

(b)His boat valued at $50,000;

(c)His Motor Vehicle 1 valued at $8,000; and

(d)His guns and fishing gear valued at $18,000.

12.Within 21 days of the date of these Orders and for the purpose of paragraph 11(a) herein, the parties shall do all acts and things and sign all such documents to transfer all of the Wife's right, title and interest in any shareholding registered in the sole name of the Wife or the parties joint names to the Husband, at the expense of the Husband (save for the shares issued to the Wife by her employer), with the Husband to indemnify the Wife absolutely for any costs associated with the said shares or said transfer, including but not limited to taxes, fees, charges and impositions.

13.Unless otherwise specified in these orders and save for the purposes of enforcing any monies due under these or any subsequent orders:

(a)each party be solely entitled to the exclusion of the other to all other property (including choses-in-action) in the possession of such party as at the date of these orders (the furniture, personal possessions and like chattels in the real property being deemed to be in the possession of the Husband);

(b)Each party forego any claims they may have to any superannuation benefits belonging to or earned by the other.  The parties each specifically retain all their right title and interest in relation to any superannuation benefits to which they are each entitled as at the date of these Orders;

(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 in their sole name or encumbering any item of property to which that party is entitled pursuant to these orders; and

(e)Any joint tenancy of the parties in any real or personal estate is hereby expressly severed.

Section 106A

14.Pursuant to section 106A of the Family Law Act 1975 (Cth), Wightons Lawyers (as defined below) be and are appointed to execute any document, deed, instrument, PEXA or other conveyancing authority and including authority to discharge a mortgage in the name of Mr Danyon ('the B Street, Suburb C Property Documents'), who is the registered proprietor of the B Street, Suburb C Property, as is necessary to cause the sale, settlement of sale, transfer and notices of disposition concerning the land known as the B Street, Suburb C Property.

15.For the sole purpose of giving effect to these orders the wife's solicitor nominate in writing a partner of Wightons Lawyers to execute any of the B Street, Suburb C Property Documents in the event of the Husband failing or refusing to execute or sign any such document or authority, and that partner is in these orders referred to as 'Wightons Lawyers'.

16.Before Wightons Lawyers undertake any act or execute any document in the name of Mr Danyon pursuant to these orders:

(a)Wightons Lawyers give notice to Mr Danyon of the intention to do so; and

(b)Provide a copy of any necessary document to be executed by Mr Danyon by email (to last known email address), ordinary pre paid post (to last known residential address) and text message (to last known mobile number) save that a Contract of Sale need only be provided by the particulars page/s and signature page/s (not the entire section 32 and Contract of Sale unless requested by the Husband).

Costs

17.The Husband pay the Wife's costs fixed at $7,000 and such amount be paid from the proceeds of sale otherwise due to the Husband pursuant to these orders.

AND THE COURT NOTES THAT:

18.Pursuant to section 81 of the Family Law Act 1975 (Cth) the parties intend these Orders shall as for as practicable finally determine the financial (and other) relationships between them and avoid further proceedings between them.

SCHEDULE “A”

Net non-superannuation property pool for division

1.   B Street, Suburb C   

2.   Share portfolio   $  32,000

3.   Husband’s boat   $  50,000

4.   Husband’s Motor Vehicle 1  $  8,000

5.   Husband’s Guns and fishing equipment   $  18,000

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 under the pseudonym Danyon & Danyon is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

EX TEMPORE
REASONS FOR JUDGMENT

JUDGE O’SHANNESSY

PROCEEDING ON AN UNDEFENDED BASIS

1. This matter of Danyon comes before me in a trial list where I have another trial listed for hearing which, fortunately, is stood down to enable discussions about one aspect of the matter. The first question I must answer in these proceedings is, should I proceed to hear this matter undefended, and I have determined that I will. The other question is what, then, should be the division of property pursuant to section 79 of the Family Law Act 1975 (Cth) (‘the Act’) in all the circumstances. The Applicant Wife, Ms Danyon, (‘the Wife’) seeks that the parties' identifiable assets be divided equally between them.

2. In all the circumstances, including that had a little more been asked for I would have considered such a request on the Wife's behalf in the circumstances which I will come to shortly, I have determined that it is just and equitable to make the orders as sought by the Wife in the terms of the minute exhibited as W3 which, for practical purposes, is the same as the amended Initiating Application filed on 8 February 2021. 

3. Firstly, the reason the matter should proceed as undefended, I note that the Wife issued proceedings on 5 October 2020 wherein she sought at Order 1:

   That there be a 50/50 division of the parties' property and superannuation entitlements. 

   Also in that same application she sought Interim Orders that the Respondent Husband, Mr Danyon (‘the Husband’), file his responding material within 21 days and an order that the parties' former matrimonial home be sold and the balance held on trust pending final order. 

4. By reason of the affidavit of Mr E filed 21 October 2020 I'm satisfied that the Husband was served with the Wife's Initiating Application, Affidavit of evidence and Financial Statement all filed on 5 October 2020 (sworn or affirmed on 2 October 2020) in addition to the Brochure relating to Marriage, Families and Separation, and a letter from the solicitors dated 6 October 2020.  That Affidavit of Service states that on 10 October 2020 the following interaction occurred between Mr E and the Husband:

   1.What is your full name? He said, “Mr Danyon.”

   2.Are you the person referred to as the Respondent in these proceedings? He said, “Yes.”

   3.I said, “Are you prepared to sign the acknowledgement of service?” He said, “No.”

   I find that Mr E did, in fact, serve the Husband.  Those proceedings had a return date listed on the application of 8 February 2021.

5. It was clear on the face of the documents that the matter was listed at Court on Monday, 8 February 2021 at 9.45 am.  On 8 February 2021 in a hearing conducted by videoconference there was no appearance by the Husband.  The hearing was conducted by Registrar Matthews.  On that day it was ordered that all extant applications be adjourned to a Registrars direction list on 21 April 2021 and a possible undefended hearing before me on 3 May 2021.  Order number 2 made on 8 February 2021 was:

   The Respondent personally appear and/or be legally represented at Court on the adjourned hearing dates.

   Order number 4 was:

   By no later than 15 March 2021 the Respondent file and serve a Response to Initiating Application, a Financial Statement and an Affidavit in support of the Response to Initiating Application.

   Order number 6 also provided that:

   In the event the Respondent does not comply with paragraphs 2 and 4 of these Orders, the Applicant was at liberty to seek that their Amended Initiating Application proceed on an unopposed basis before Judge O'Shannessy at 10:00 am on 3 May 2021. 

   The costs of that hearing were reserved. 

6. On 21 April 2021 as ordered the matter again came before Registrar Matthews by videoconference.  Order number 1 was:

   The matter remains listed for a possible undefended hearing before Judge O'Shannessy on 3 May 2021 at 10:00 am.

   Order number 2 was:

   The Applicant’s costs of and incidental to the directions hearing at 21 April 2021 be reserved.

   It was noted in Notation A that:

   There was no appearance by the Respondent at Court today and no court documents have been filed by the Respondent in this matter.

   Indeed, as at this point in time at 3 May 2021, still no documents have been filed by the Husband. 

7. I am satisfied that on 13 February 2021 an Amended Application, the Interim Orders of the 8 February 2021 and a letter dated 11 February 2021, were personally served on the Husband at the former matrimonial home and I note, that Mr E is the same process server that had served the Husband at the original proceedings in October the previous year. 

8. On the occasion of 13 February 2021, according to Mr E the following interaction occurred, he asked the Husband:

   What is your full name? He said, “Mr Danyon.”

   1.Are you the person referred to as the Respondent in these proceedings?

   2.He said, “Leave them here” pointing to the roof of a vehicle parked in the driveway. 

   3.[Mr E] said, “Are you prepared to sign the acknowledgment of service?” He stared at me pointing to the roof of the motor vehicle. 

9. Mr E deposes that when he told the husband that he had family law documents for him, that the Husband looked at the documents and said, "Leave them here", pointing to the roof of the vehicle in the driveway.  I find that Mr E put them down and left them in the presence of the husband.  Hence, I am satisfied that the Husband has been served with the Amended Application and importantly, the Orders of 8 February 2021. 

10. I am hearing this matter on 3 May 2021, many weeks after that service.  So in all those circumstances, including the sensible application of the Wife, I find that the matter should proceed on an undefended basis. 

    ESSENTIAL FACTS

11. I accept the uncontested matters asserted in the Wife’s material. The Wife is aged 50 and the Husband is aged 51.  The Wife is employed in the retail industry and the Husband in a factory. The parties commenced cohabitation when they married in 1994 and they separated in August 2019.  The parties are not yet divorced, and these property proceedings were issued on or about 5 October 2020. 

12. The parties have two children, both now adults.  Following separation one of the parties' children continued to reside in the matrimonial home with the Husband and that child now resides with the Wife.

13. Immediately following separation, the Wife paid one half of the mortgage payment on the matrimonial home and the Husband paid the other half.  Following the child referred to above leaving the matrimonial home and coming to reside with the Wife, in or about April 2020, the Wife ceased making that mortgage payment.

14. The parties had become engaged in 1994 and purchased their first home together in that year.  The parties contributed jointly to the deposit as well as all expenses relating to that first home.  Ultimately, the parties sold that home and purchased another.  That home was sold, and they purchased, what then became, the former matrimonial home.  The parties I find, each worked hard over the many years of their relationship together, including raising two children.

15. I find that the Husband was usually employed and diligently so during the relationship and in addition, he assisted in home making and raising the children. Taking into account all the matters under section 79(4)(a), (b) and (c) of the Act. I find that save for the inheritance that the Husband received in about 2010 which I will address later, that the parties have contributed equally over this long marriage to all of the parties’ property.

    DUTY OF FINANCIAL DISCLOSURE

1. Post separation, it is clear that the Husband and the Wife from Annexure  – 01, received advice that the matrimonial home would achieve a significantly better value if the property was improved for the purposes of sale and they were advised in 2019:

   If, as discussed, you were to re-paint the inside of the home, replace the carpets and attend to the outside surrounds including the lawn/grassed areas and the garden beds I believe that you would be able to achieve a much better price outcome and a realistic market assessment of your property after those improvements would lie in the range of $850,000 to $900,000.

2. The sales consultant thereby set out a price that was some $50,000 – $100,000 more than what was otherwise asserted to be the price.  I find that, and I note that the Wife offered to finance such improvements on the basis that she would borrow the funds, some $10,000 to undertake those improvements.  It remains to be seen if following these Orders, whether the Husband will sensibly cooperate to have the property properly presented to sale for his benefit and the Wife's equal benefit.  However, it is significant that he has failed to do so to this point in time. 

3. I find the assets of the parties are as set out at Schedule “A” to these Orders and are set out as follows:

   SCHEDULE "A"

   Net non-superannuation property pool for division

   B Street, Suburb C       

   Share portfolio     $        32,000

   Husband's boat   $        50,000

   Husband's Motor Vehicle 1  $        8,000

   Husband's Guns and fishing equipment   $        18,000

   I note that as a consequence of the Husband's failure to disclose necessary financial information and documents, including the extent of his inheritance and its application, the extent of his current share portfolio and his savings accounts or financial funds, if any, I am unable to determine all of the parties assets and financial resources.  I find that the Wife has made full and frank disclosure to the Court and the Husband has not. 

4. I note that this day, in addition to the assets described in the Wife's Affidavit Financial Statement and amended application, she has disclosed to me, that she has savings in the bank, in one account of $17,040 and another account of $47 and that she's recently learnt that she has some shares issued by her employer to the value of approximately $2,500.  In addition, the Wife has home contents that she estimates would be worth $2,100.  Of course, it is also asserted, and I accept that, the Husband retains household contents and shares.  The only just and equitable way to deal with that matter is not to accept an estimate of the value but simply note that both the Husband and the Wife have household contents and furniture.

5. In the circumstances where I simply don't know what amount the Husband has in his bank accounts, I don't propose to include, as an asset to be adjusted the Wife’s bank account, but I do take into account that it exists. 

6. I find that on 21 January 2020, the Wife's lawyers wrote to the Husband at the address at the former matrimonial home and advised inter alia that the Husband had not filed any material and was due to come before the Court on 8 February 2021.  The letter, known as Annexure - 01 went on to say:

   Furthermore in the absence of any material from you to the contrary, we will assume that the values attributed to the matrimonial property is outlined in our client's Affidavit sworn 2 October 2020 are agreed and accordingly, we will be seeking Final Orders for an equalisation of the assets on that basis. 

   Finally, our client will also be seeking reimbursement for the costs that she has incurred in relation to this matter, in circumstances where same could have been avoided had you engaged in fruitful negotiations as opposed to ignoring our correspondences.

7. On 1 February 2021, it was set out that in the letter from Wightons Lawyers to the Husband at the former matrimonial home that they were still yet to receive any material filed and that they would be seeking to proceed with the Wife's application on an undefended basis at the hearing on 8 February 2021.  The Orders that were to be sought were enclosed.  It was also noted that:

   …in the event that we do not hear from you and you elect to not participate in the hearing on 8 February 2021, we will assume that you consent to the Order being proposed.

   What was also enclosed was an email received from the Court setting out the details of the hearing and how the Husband was to attend in the context of it being a video link hearing, these being COVID-19 times. 

8. I infer that there has been no response to either of those letters.  The significance of the letter as to the value of the Husband's boat, firearms, fishing equipment, and shares is significant.  The Husband is on notice of the values to be attributed to those by the Wife in the proceedings.

9. In regard to the boat, the most substantial item, the parties purchased that boat by refinancing the mortgage over the jointly contributed matrimonial home in 2010, and the boat was purchased for a sum of $65,000.  Upon my enquiry today, the Wife told me that the boat is kept in good order by the Husband.  I am untroubled by the value of $50,000 that she attributes to it.  It may be worth a little more or a little less, but in the context of undefended proceedings and the Husband being on notice of that value, I infer that to the extent the Husband disagrees with the value, any disagreement that he has is either that it's worth more than the $50,000 attributed to it, or that it's not worth the powder and shot, inconvenience, and trouble of agitating any lesser value.

10. I find the same in regard to the other items of property described on Schedule “A” which are also described in the Wife's affidavit.  I have considered whether I should deal separately with the item in Schedule “A”.  That is, the Husband's share portfolio.  I note this day, the Wife has given evidence to me that the Husband told her that he had shares to the value of about $32,000 in conversation and told her the same in an email.  At the time of the conversation he said to her that the Wife could have half. 

11. What is significant is the Wife has disclosed to me that on the limited information available to her, she believes that some substantial part of those shares derives from the Husband's inheritance received in 2010.  She was never made privy to the extent of the inheritance or to what the Husband has done with any inheritance that he received.

12. There is a heavy burden on both parties to make a full and frank disclosure of all relevant documents and information relating to their financial affairs once proceedings have been issued.  I find that the Wife has made a full and frank disclosure to the Court and to the Husband of her financial affairs.  The Husband has not made a full and frank disclosure of his financial affairs to the Wife or to the Court.  The extent of the inheritance or what came of it is not known.  It is not known what savings or bank accounts the Husband may have. 

13. Usually those circumstances in litigation have at least the following three circumstances.  They are sometimes referred to as a three-leaf clover or the Holy Trinity or, the unholy trinity of the consequences of nondisclosure.  The first being that on the basis of authorities such as Weir & Weir (1993) FLC 92-338 and Black & Kellner (1992) FLC 92-287 and the cases following those, I am entitled to be more generous to the Wife in the proceedings than to the Husband who has failed and refused to comply with his duty of financial disclosure for that reason alone. That is the first limb.

14. The second limb is the ordinary principle that applies in litigation that the Husband's failure to put forward that evidence may lead to the inference being drawn that there are some aspects of what he has not disclosed that would not suit his case. 

15. The third limb applies after they have told the Court that they have disclosed everything and damages his or her credibility.  That third aspect, or leaf of the clover, does not apply in this case because the Husband has never maintained that he has made full and frank disclosure. 

16. However, this is a case where I would be able to exercise my discretion to make a more generous finding of what the division should be because of the Husband’s nondisclosure.  It is significant that the Wife, who has retained counsel today, does not seek that additional part that she may have sought in the circumstances of the Husband's nondisclosure.  She maintains the position to seek only 50 per cent of the known assets. 

    PROPERTY DIVISION

17. In the circumstances where the part of the known assets of the shares were directly inherited by the Husband without contribution by the Wife, it is the circumstance open to me to deal with those shares separately.  However, I find that the extent to which I may have been more generous to the Husband in regard to those shares is a lesser amount than what I would have been inclined to exercise my discretion to provide a more generous settlement to the Wife in the circumstances of the nondisclosure.  Balancing those two matters, and the circumstances that the Wife only seeks 50 per cent of the known assets, I find that it is just and equitable not to deal with the shares separately notwithstanding that an unknown part of those shares were directly contributed by the Husband from his inheritance. 

18. I have discussed with counsel a minor variation to the order relating to the section 106A Order. I find, on the evidence, that it is likely that the Husband will not cooperate with the sensible retention of real estate agents, retention of conveyancing solicitors and execution of necessary documents. However, I cannot be certain. It may be following receipt of the orders that the Husband turns over a new leaf of cooperation simply because it is in his interests to do so, and that the minor improvements recommended by the selling agents occur at the parties' joint expense. I cannot be certain about that.

19. I have not taken into account the circumstance that on the basis of the Husband's cooperation to date, it is possible, or indeed, likely, that each of the Husband and the Wife will forego some part of their life's work of the equity in that home because of the Husband's failure to cooperate with the sensible preparation of the matter for sale.  That, in my view, is generous to him.  Again, I note, that notwithstanding that circumstance, the Wife has only sought an equal share of the proceeds of the home and of the identifiable assets. 

20. In terms of section 75(2) factors, each party is employed and has been for some time. Each party earns, by community standards, a decent but not high income. At the moment, the Wife earns a substantial amount more than the Husband. On the information available to me, and available to the Wife, it appears that the Husband's income is in the order of approximately $90,000 per annum, and the Wife's income is in the order of $155,000 per annum. Both figures are before income tax.

21. In some cases, that may have called for an adjustment of some very small amount in the Husband's favour given the disparity of income between the parties.  I have considered whether or not I should do that.  In the circumstances of the nondisclosure by the Husband, I decline to make such adjustment.  It may be that had he made full and frank disclosure; I may not have made any adjustment on account of that income disparity in any event. 

22. What is significant is that neither party has the obligation to care for children or to look after anyone else, other than themselves, and they are both healthy and gainfully employed in reasonably well paid employment.  In all of those circumstances I find it is just and equitable to make the orders as set out in exhibit W3 save that there will be an adjustment to the definition of item 1, being the Suburb C property at Schedule “A”, and that will read instead of "to be determined" to read as follows, The net proceeds of sale of the Suburb C property after discharge of mortgage, discharge of encumbrances, adjustment of rates and payment of sales commission and advertising expenses and conveyancing costs. 

23. The section 106A Order will also be amended. I do not propose to have the wife to have the responsibility of executing documents in the Husband's name in the event that he refuses. I propose that that should be a solicitor. It is an unfair burden to place upon the Wife in the circumstances and that burden should be placed upon a solicitor and a senior solicitor because of the solicitor's obligation to the Court and to the parties. I have every confidence that a partner of the firm of solicitors known as Wightons will carry out that obligation with care and responsibility.

24. I hope that the Husband sensibly cooperates in executing his own documents rather than have the indignity of having someone else execute them on his behalf.  I also repeat that I hope that he will join with the Wife in improving the property for the purposes of sale given that he is going to receive 50 per cent of the proceeds thereof. 

    APPLICATION FOR COSTS

25. The Wife has made an application for costs.  I take into account the Wife's costs are accurately set out at W1 and to this point in time, including counsel's fees, her costs are just a tad under $11,500.  On scale, depending how much of the preparation for final hearing fee was included, the total costs would be a tad under $10,000 being $9,867.  I take into account that some costs are necessary to have the matter satisfactorily proceed with proper legal advice and care and attention, in any event. The item number 2, which takes the matter up to, but not including, the appearance on 8 February 2021 is about $2,800. 

26. I take into account section 117(1) of the Act which is that ordinarily each party should bear their own costs and that can be departed from if there's good reason. Under section 117(2A) of the Act I take into account the financial circumstances of the parties. They're both working. They're both earning not enormous but quite reasonable incomes. Neither is in receipt of legal aid. I take into account the Husband's conduct for the proceedings of not filing necessary documents, necessitating the matter being listed for a final hearing on an undefended basis. I note that an undefended basis is not necessarily easier because there are no sensible concessions to be wrought from the other side and every aspect of the case must be proved.

27. I note that the Husband has failed to comply with the order of 8 February 2021 to file Response and Affidavit material and Financial Statement. I note that the Husband has failed to comply with his duty of financial disclosure. I'm not prepared to place any weight on section 117(2A)(e) of the Act, that he has been wholly unsuccessful because it's likely that he would have been advised that a sensible division of assets would have been 50/50 of all of the assets save for his inherited shares and if not advised 50/50, close to. The only matter that would have given raise to some argument or discussion is what is, at the moment, a modest disparity of income between the parties if the income is taken into account after tax.

28. I do take into account that the Wife made a sensible offer to the Husband which is very much in terms of the Amended Application and the orders that I make today. The Husband had communicated to him by the Amended Application and the detail contained within it and the letter that provided that to him he was on notice that this was a sensible matter that he should have at least considered. Taking all of those matters into account, I find that the ordinary position of section 117(1) of the Act should be departed from.

29. In the exercise of my discretion as to costs I do not find that the circumstances are sufficiently out of the ordinary, unfortunately, or exceptional as to warrant an order for all of the Wife's costs to be paid and in the circumstances where some amount of costs is necessarily and sensibly incurred by parties.  Hence, I will fix the costs in the sum of $7,000 and to order that the Husband pay the Wife’s costs fixed in the sum of $7,000 and such sum to be deducted from the amount otherwise payable to the Husband upon the proceeds of the home pursuant the orders that I have previously given. 

30. There should be an order for costs and for the reasons that I've indicated that order for costs should be $7,000 and that $7,000 payment should be stayed to be paid from the proceeds of sale and I will so order.

I certify that the preceding forty-five (45) numbered paragraphs are a true copy of the Reasons for Judgment of Judge O'Shannessy.

Associate:

Dated:       22 June 2021