DESBROW & DESBROW

FAMILY COURT OF AUSTRALIA

DESBROW & DESBROW

[2016] FamCA 510

FAMILY LAW – PROPERTY – UNDEFENDED HEARING – Application by the respondent wife to proceed with her application for final property orders – where the applicant husband did not appear at the hearing – where there are criminal proceedings outstanding against the husband – greater contributions made by the wife during the marriage and post-separation – where the wife has the sole care of the two children of the marriage and another child from a previous relationship – where one child of the marriage has significant medical needs – where the husband has made minimal contribution to the financial support of the children and is unlikely to do so in the future – modest pool – final orders made that the wife retain the majority of the net assets.

FAMILY LAW – COSTS – Application by the wife for costs on an indemnity basis – where the husband initiated proceedings – where the husband has not participated in the proceedings and has failed to appear at court events – where the wife has been wholly successful in her application – where the wife will retain the majority of the parties’ assets – where property proceedings would have been necessary in any event to finalise the parties’ financial relationship – no order made for costs

Family Law Act 1975 (Cth)

De Winter & De Winter (1979) 4 Fam LR 583
Stanford v Stanford (2012) 247 CLR 108

APPLICANT:

Mr Desbrow

RESPONDENT:

Ms Desbrow

FILE NUMBER:

MLC

9627

2015

DATE DELIVERED:

19 May 2016

PLACE DELIVERED:

Melbourne

PLACE HEARD:

Melbourne

JUDGMENT OF:

Johns J

HEARING DATE:

2 March 2016

REPRESENTATION

THE APPLICANT:

No appearance

COUNSEL FOR THE 1ST RESPONDENT:

Mr Fronistsas

SOLICITOR FOR THE 1ST RESPONDENT:

Antippa Lawyers

Orders

That paragraphs 6, 14 and 15 of the orders made by Judge Burchadt in the Federal Circuit Court of Australia on 16 November 2015 be discharged.
That the husband do all such acts and things as may be required to transfer to the wife his interest in the chattels contained in the storage units …, … at B Storage, Suburb A in the State of Queensland (“the storage facility”) and in order to give effect to this order the chattels be delivered to the wife at C Street, D Town in the State of Victoria (“C Street”).
That the wife shall be solely entitled to all the chattels from the storage facility including furniture and children’s toys.
That the proceeds of sale of E Street, Suburb F in the State of Queensland currently held in trust by Antippa Lawyers be paid to the wife.
That the property situate at and known as G Street, D Town in the State of Victoria (“G Street”) be sold and the wife be the sole signatory in relation to the sale.
That the wife be authorised to sign all documents and do all such acts and things as may be required on behalf of the husband and the wife to effect the sale of G Street.
That upon the sale of G Street the proceeds of sale be applied as follows:-
(a)payment of all costs and expenses of sale including legal costs and disbursements, agents commission, valuer fees and auction expenses, if any;
(b)discharge of the mortgage registered against the title to G Street;
(c)payment of the amounts required to pay all municipal and water rates outstanding; and
(d)payment of the balance then remaining to the wife.
That the wife be solely entitled to the Bond paid for the lease of C Street.
That paragraphs numbered 10 to 12 (inclusive) of these orders are binding on the Trustee of the H Superannuation Fund, which is Equity Trustees Limited A.C.N. ….
That a base amount of $19,912.23 be allocated to the wife out of the interest of the husband’s interest in the H Superannuation Fund.
That pursuant to s 90MT(1)(a) of the Family Law Act 1975 (Cth) (“the Act”) whenever a splittable payment becomes payable in respect of the husband’s interest in the H Superannuation Fund, the wife shall be entitled to be paid an amount calculated in accordance with Pt 6 of the Family Law (Superannuation) Regulations 2001 (Cth) using the base amount and there be a corresponding reduction in the entitlement of the person to whom the splittable payment would have been made but for these orders.
That the Trustee of the H Superannuation Fund shall do all such acts and things and sign all such documents as may be necessary to:-
(a)calculate, in accordance with the requirements of the Act and the Family Law (Superannuation) Regulations 2001(Cth), the entitlement created for the wife by paragraph 10 of these orders;
(b)pay the entitlement whenever the Trustee makes a splittable payment from the husband’s interest in the H Superannuation Fund.
That paragraphs 10 and 11 of these orders have effect from the operative time and the operative time is four business days after service of these orders upon the Trustee of the H Superannuation Fund.
That paragraphs numbered 15 to 17 (inclusive) of these orders are binding on the Trustee of the I Superannuation Fund, which is BT Funds Management Limited A.C.N. ...
That a base amount of $11,819.78 be allocated to the wife out of the interest of the husband’s interest in the I Superannuation Fund.
That pursuant to s 90MT(1)(a) of the Act whenever a splittable payment becomes payable in respect of the husband’s interest in the I Superannuation Fund, the wife shall be entitled to be paid an amount calculated in accordance with Pt 6 of the Family Law (Superannuation) Regulations 2001 (Cth) using the base amount and there be a corresponding reduction in the entitlement of the person to whom the splittable payment would have been made but for these orders.
That the Trustee of the I Superannuation Fund shall do all such acts and things and sign all such documents as may be necessary to:-
(a)calculate, in accordance with the requirements of the Act and the Family Law (Superannuation) Regulations 2001(Cth), the entitlement created for the wife by paragraph 15 of these Orders;
(b)pay the entitlement whenever the Trustee makes a splittable payment from the husband’s interest in the I Superannuation Fund.
That paragraphs 15 and 16 of these orders have effect from the operative time and the operative time is four business days after service of these orders upon the Trustee of the I Superannuation Fund.
That 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;
(b)monies standing to the credit of the parties in any joint bank account are to become the property of the wife;
(c)insurance policies remain the sole property of the beneficiary 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 in any real or personal estate is hereby expressly severed.
That pursuant to s 106A of the Act a Registrar of the Family Court of Australia at Melbourne be appointed to execute all documents and do all such acts and things necessary on behalf of the husband to give validity and operation to these orders.
That the wife forthwith cause to be served upon the husband at his email address … the following:
(a)a sealed copy of these orders;
(b)reasons for judgment;
(c)a copy of the letter from Antippa Lawyers to H Superannuation dated 2 March 2016 and their response thereto; and
(d)a copy of the letters from Antippa Lawyers to I Super dated 2 March 2016 and 11 March 2016 their response thereto.
That as soon as practicable the wife file an affidavit of service confirming her compliance with Order 21 hereof.
That the husband have liberty to apply in relation to these orders conditional upon the husband filing and serving upon the wife by 4.00 pm on 9 June 2016 the following:
(a)an application in a case; and
(b)an affidavit setting out his reasons for failing to attend the hearing on 2 March 2016.
That all extant applications be otherwise dismissed.

IT IS CERTIFIED

That pursuant to r 19.50 of the Family Law Rules 2004 (Cth) this matter reasonably required the attendance of counsel and instructing solicitor.

IT IS DIRECTED

That all documents produced to the Court pursuant to subpoena and exhibits relied upon by the parties be returned by the subpoena clerk of the Family Court of Australia, Melbourne Registry, to the person or organisation who produced same after the expiration of thirty (30) days from the date of these orders, or otherwise upon the conclusion of any appeal.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Desbrow & Desbrow 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: MLC 9627 of 2015

Mr Desbrow

Applicant

And

Ms Desbrow

Respondent

REASONS FOR JUDGMENT

Introduction

In December 2015, in the aftermath of allegations that he had sexually abused the wife’s then 10 year old child from a previous marriage, the husband left Australia and is believed to have returned to his country of birth in Africa. Since that time, the husband has not participated in these proceedings or the criminal proceedings in the Magistrates’ Court of Victoria arising from the allegations of sexual abuse and a warrant has issued for his arrest in the Magistrates’ Court of Victoria due to his failure to appear in those proceedings.
On 2 March 2016, the wife’s application for final property orders was listed before me in the Judicial Duty List. That application was listed before me upon the order of Senior Registrar FitzGibbon made 3 February 2016 which provides that:-
… all extant applications for property and financial orders be adjourned to the Judicial Duty List on 2 March 2016 at 10:00am for the wife to seek undefended orders, including final orders, but subject to compliance with orders of the presiding Judge.
The parenting proceedings were finalised by the Senior Registrar on an undefended basis on 3 February 2016. The wife now seeks final property orders on an undefended basis due to the husband’s failure to appear and participate in these proceedings.
The husband has had lawyers representing him in these proceedings. Those lawyers filed a Notice of Ceasing to Act on 27 January 2016.
The husband did not appear at the hearing before the Senior Registrar on 3 February 2016.
At the hearing before me, the husband was called at the commencement of the hearing. There was no appearance by him or on his behalf in answer to that call.
In light of that history and the husband’s failure to appear before me, the matter proceeded on an undefended basis. At the conclusion of the hearing, I reserved my judgment. These are my reasons for judgment with respect to the wife’s application for final property orders.

The Parties

The husband, Ms Desbrow, is the applicant in the proceedings. He is aged 42 years and is a technical officer. The husband was born in Africa and is a citizen of an African country and a resident of Australia.
The wife, Ms Desbrow, is the respondent in the proceedings. She is aged 43. The wife was born in Africa and is a New Zealand citizen and a resident of Australia.
The parties commenced cohabitation in New Zealand in early 2009 and married in 2010 in the South Pacific. The parties relocated to Australia in September 2012 and separated on 2 October 2015.
There are two children of the marriage, J who is aged five and K who is almost two years of age.
The wife also has a child from a previous marriage, L, who is almost 12 years of age. The wife has sole parental responsibility for L; L lives with the wife and has not seen her father since March 2014.

Orders Sought

At the hearing before me, the wife sought orders in the terms of her Outline of Case filed 24 February 2016, save that following the hearing the orders sought were amended to reflect changes in the superannuation splitting orders as required by the trustees of the relevant superannuation funds.
At the time of the hearing, neither fund had been afforded procedural fairness. Accordingly, at the conclusion of the hearing I directed the wife’s solicitor to serve the proposed orders on the trustees of the funds and further to provide to my Associate evidence of the same together with any response received from the trustees of those funds. On 15 March 2016 an email was sent to my Associate (Exhibit W2) from the wife’s solicitor which confirmed that procedural fairness has now been afforded to each of the trustees of the respective funds and which also attached an amended draft of the final orders sought by the wife (“the amended draft”) reflecting the amendments requested by the trustees of the funds. The trustees of the funds have confirmed that they have no objection to orders in the terms of the amended draft.
The amended draft was in substance the same as the orders sought in the wife’s Outline of Case, save that the amended draft specified the base amounts to be allocated to the wife from the husband’s superannuation funds. The correspondence received by the wife’s lawyer from the trustees to the superannuation funds has not been served on the husband. Accordingly, I will make orders that the wife cause a copy of those documents together with the orders I make to be served on the husband. I propose to provide him with a limited opportunity to make application with respect to my orders upon the filing of an application in a case and affidavit setting out his reasons for failing to attend the hearing before me.
The final orders as sought by the wife in the amended draft are as follows:-
(1)That paragraphs 14 and 15 of the Orders of His Honour Judge Burchadt of the Federal Circuit Court of Australia made on 16 November 2015 be varied as follows:
“That the Respondent (Wife) shall be the sole signatory in relation to the sale of and the transfer of the real property being vacant land situated at [G Street, D Town], Victoria and she shall be authorised to sign all documents for both registered proprietors (the Applicant and the Respondent)”.
(2)That paragraph 6 of the Orders of His Honour Judge Burchadt of the Federal Circuit Court of Australia made on 16 November 2015 be varied as follows:
(a)“That the chattels contained in the storage units …, … at [B Storage, Suburb A], Queensland are to be transferred to the garage of the Respondent (Wife) at [C Street, D Town], Victoria”;
(b)“That the Respondent (Wife) shall be solely entitled to all the chattels from the storage facility including furniture and children’s toys”;
(3)That the Respondent Wife shall be entitled to retain the proceeds of sale of [E Street, Suburb F], Queensland, currently held in trust by Antippa Lawyers.
(4)That upon the sale of [G Street, D Town], Victoria, the Respondent pay the following:
(a)all costs and expenses of sale including legal costs and disbursements, agents commission, valuer fees and auction expenses, if any;
(b)the amounts required to discharge the mortgage;
(c)the amounts required to pay all municipal and water rates outstanding;
(d)the balance to the Respondent Wife.
(5)That the Respondent Wife be solely entitled to the Bond paid for the lease of [C Street, D Town], Victoria.
(6)That paragraphs numbered 7 to 10 (inclusive) of these Orders are binding on the Trustee of the [H] Superannuation Fund.
(7)That a base amount of $19,912.23 is allowed as required by s. 90MT(4) of the Family Law Act, 1975 to [Ms Desbrow] from the [Mr Desbrow] interest in the [H] Superannuation Fund.
That in accordance with s. 90MT(1)(a) of the Family Law Act, 1975:
(a)[Ms Desbrow] is entitled to be paid the amount calculated in accordance with Part 6 of the Family Law (Superannuation) Regulation, 2001;
(b)[Mr Desbrow’s] entitlement to payments from his interest in the [H] Superannuation Fund and the entitlement of such other person to whom a splittable payment may be payable is, correspondingly, reduced by force of this order.
(8)That the Trustee of the [H] Superannuation Fund shall do all such acts and things and sign all such documents as may be necessary to:
(a)calculate, in accordance with the requirements of the Family Law Act, 1975 and the Family Law (Superannuation) Regulations, 2001, the entitlement created for [Ms Desbrow] by paragraph 7 of this order;
(b)pay the entitlement whenever the Trustee makes a splittable payment from [Mr Desbrow’s] interest in the [H] Superannuation Fund.
(9)That these orders have effect from the operative time and the operative time for this order is 4 business days after service of these Orders upon the Trustee of the Fund.
(10)That this Order binds the Trustee of [H] Superannuation Fund, which is Equity Trustees Limited A.C.N. ...
(11)That paragraphs numbered 12 to 15 (inclusive) of these Orders are binding on the Trustee of the [I] Superannuation Fund.
(12)That a base amount of $11,819.78 is allowed as required by s. 90MT(4) of the Family Law Act, 1975 to [Ms Desbrow] from the [Mr Desbrow] interest in the [I] Superannuation Fund.
That in accordance with s. 90MT(1)(a) of the Family Law Act, 1975:
(a)[Ms Desbrow] is entitled to be paid the amount calculated in accordance with Part 6 of the Family Law (Superannuation) Regulation, 2001;
(b)[Mr Desbrow’s] entitlement to payments from his interest in the [I] Superannuation Fund and the entitlement of such other person to whom a splittable payment may be payable is, correspondingly, reduced by force of this order.
(13)That the Trustee of the [I] Superannuation Fund shall do all such acts and things and sign all such documents as may be necessary to:
(a)calculate, in accordance with the requirements of the Family Law Act, 1975 and the Family Law (Superannuation) Regulations, 2001, the entitlement created for [Ms Desbrow] by paragraph 7 of this order;
(b)pay the entitlement whenever the Trustee makes a splittable payment from [Mr Desbrow’s] interest in the [I] Superannuation Fund.
(14)That these orders have effect from the operative time and the operative time for this order is 4 business days after service of these Orders upon the Trustee of the Fund.
(15)That this Order binds the Trustee of [I] Superannuation Fund, which is BT Funds Management Limited A.C.N. ...
(16)That 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 property being deemed to be in the possession of the Husband/Wife;
(b)monies standing to the credit of the parties in any joint bank account are to become the property of the Wife;
(c)insurance policies remain the sole property of the beneficiary 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;
(e)Any joint tenancy of the parties in any real or personal estate is hereby expressly severed.
(17)That the Applicant pay the costs of the Respondent on an indemnity basis.
(18)The application of the Husband filed on 14 October 2015 is, otherwise, dismissed.
ADDITIONAL ORDER
(19)A Registrar of the Family Court of Australia at Melbourne be appointed, pursuant to s. 106A, to execute all such documents in the name of [MR DESBROW] also known as [MR DESBROW] and to do all such acts and things necessary to give validity and operation to the said order.
IT IS CERTIFIED
(20)That pursuant to Rule 19.50 of the Family Law Rules this matter reasonably required the attendance of Counsel and instructing Solicitor.
THE COURT NOTES
That the parties intend these orders shall be, as far as practicable, finally determine the financial (and other) relationships between them and avoid further proceedings between them.

The Proceedings

On 14 October 2015 the husband filed an Initiating Application in the Federal Circuit Court seeking parenting and property orders. The wife filed a Response to Initiating Application on 13 November 2015.
On 12 November 2015 the husband filed an Amended Initiating Application seeking parenting orders and more extensive property orders than those sought in his Initiating Application.
On 16 November 2015, Judge Burchardt made orders by consent for the sale of two properties owned by the parties. His Honour also made orders transferring the matter to the Melbourne Registry of this Court. Although counsel appeared on the husband’s behalf that day, the husband was not present at that hearing.
On 24 November 2015 Registrar Field made orders in chambers adjourning all extant applications for hearing before the Senior Registrar and the Magellan Registrar on 3 February 2016. Registrar Field also made orders appointing an Independent Children’s Lawyer and requesting a Magellan Report be issued by the Department of Health and Human Services with respect to L by no later than 27 January 2016.
On 27 January 2016, the husband’s then solicitors filed a Notice of Ceasing to Act.
On 2 February 2016, the wife filed an Application in a Case seeking inter alia that the husband’s Amended Initiating Application filed 12 November 2015 be dismissed. The wife also sought final parenting and property orders.
On 3 February 2016, Senior Registrar FitzGibbon made final parenting orders and further made orders adjourning all extant property applications to the Judicial Duty List on 2 March 2016 for the wife to seek undefended orders, including final property orders. There was no appearance by the husband or on his behalf on that day.
The matter then came before me in the Judicial Duty List on 2 March 2016. As previously referred to, although the husband was called that day, there was no appearance by him or on his behalf and the hearing proceeded in his absence.

Material Relied Upon By the Wife

In support of her application for final property orders, the wife relied upon the following documents:-
·Outline of Case filed 24 February 2016 (“the Case Outline”);
·Response to Initiating Application filed 13 November 2015;
·Affidavit of the wife filed 13 November 2015;
·Financial Statement of the wife filed 13 November 2015;
·Notice of Risk filed 13 November 2015;
·Application in a Case filed 2 February 2016;
·Affidavit of the wife filed 24 February 2016;
·Financial Statement of the wife filed 24 February 2016; and
·Affidavit of Peter Gregory Antippa filed 1 March 2016.
During the hearing, counsel for the wife tendered a superannuation information form in respect of I Super Account (Exhibit W1).

Procedural Fairness

Paragraph 14 of the orders dated 3 February 2016 required the wife to serve on the husband at his last known email address as soon as practicable a sealed copy of the orders of 3 February 2016 and the Case Outline.
The Affidavit of Mr Antippa filed 1 March 2016 confirms at paragraph 5 that he served the husband with the orders dated 3 February 2016 by email on 8 February 2016. Mr Antippa deposes that he received no response to that email. Paragraph 1 of the orders of 3 February 2016 states that all extant applications for property and financial orders are listed on 2 March 2016 for the wife to seek undefended orders.
Mr Antippa deposes at paragraph 9 of his Affidavit that on 25 February 2016 the husband was served by email with the Case Outline and the wife’s Affidavit and Financial Statement, both filed 24 February 2016. Mr Antippa deposes that he received no response to that email.
I accept the evidence of Mr Antippa regarding his service upon the husband at his email address of the 3 February 2016 orders and documents relied upon by the wife. Accordingly, I am satisfied that the wife has complied with paragraph 14 of the Senior Registrar’s orders.
Further, having regard to Mr Antippa’s Affidavit, I am satisfied that the husband has had notice of the hearing listed before me and that the wife sought to proceed with her application for final property orders on an undefended basis at the hearing. I am also satisfied that the husband has had notice of the material relied upon by the wife in support of that application. In all of the circumstances I am satisfied that it is appropriate for the matter to proceed on an undefended basis.

The Hearing

The matter was conducted on the papers. The wife relied upon the material referred to above and the submissions made.
The wife was represented by counsel at the hearing.

Background

On 7 August 2007, prior to commencement of cohabitation, the Ms Desbrow Family Trust (“the Trust”) was created by Deed of Trust; the wife is the settlor of the Trust. At the time of its creation, the wife and L were the only discretionary beneficiaries of the Trust. Upon their births, the parties’ two children J and K became discretionary beneficiaries of the Trust.
The wife deposes in her Affidavit filed 24 February 2016 at paragraph 4 that the assets of the Trust were contributed by her. She deposes that the Trust was settled in order to secure the financial future of herself and her children.
The wife further deposes at paragraph 6 of that affidavit that at the commencement of the parties’ cohabitation in early 2009, the Trust held the following assets:-
·an unencumbered property valued at $425,000;
·furnishings valued at $50,000; and
·investments valued at $400,000.
In addition, at the commencement of cohabitation the wife owned a 4WD motor vehicle valued at $25,000 and was a partner in a business earning $3,000 per month.
The wife deposes at paragraph 7 of her affidavit that at the commencement of cohabitation the husband had a debt of $45,833, his tools of trade, a motor vehicle which was subject to finance and chattels. The wife’s evidence is that upon the commencement of the relationship, the Trust discharged the husband’s debt of $45,833.
The husband ceased his employment within the first six months of the relationship and thereafter had sporadic employment. The wife deposes that she supported the husband during his periods of unemployment, drawing upon funds held in the Trust to pay for the family’s expenses.
The wife’s evidence is that throughout the relationship she used money from the Trust to pay various expenses of the parties, including the purchase of a business for the husband, deposits and stamp duty on real property, and school fees for the children.
The property held by the Trust was sold in February 2013. The proceeds of sale of approximately $253,000 were then applied to the purchase of vacant land at E Street, Suburb F, Queensland (“the Queensland property”). The Trust paid all expenses associated with the purchase of the Queensland property, including stamp duty. The title to the Queensland property was registered in the joint names of the parties.
Following the purchase of the Queensland property the parties borrowed funds from Westpac Banking Corporation Ltd (“Westpac”) secured by way of registered mortgage to build a house on the Queensland property. The husband met the interest payments, totalling approximately $16,000 with respect to that loan for the first year of the loan, between 2013 and 2014. Thereafter the loan repayments were met from rental income.
The wife deposes at paragraph 15 of her Affidavit filed 24 February 2016 that at or about the time of the purchase of the Queensland property the husband was able to obtain two credit cards from Westpac, with limits of $25,000 and $5,000 respectively. The husband charged both cards to their limits on two occasions. Those credit card liabilities, totalling $60,000 were refinanced and secured against the Queensland property. The parties borrowed a further $14,000 to construct a swimming pool at the Queensland property. The wife deposes that she has been responsible for all repayments with respect to the second loan.
In early 2015 the parties purchased vacant land at G Street, D Town, Victoria (“the Victorian property”). That property has been appraised as having a value of between $180 000 and $190 000.[1] The Victorian property is subject to a mortgage of approximately $146,000.
[1] Affidavit of Peter Gregory Antippa filed 1 March 2016, paragraph 3.
Payment of the mortgage instalments in respect of the Victorian property has been suspended since December 2015 as a result of the wife making a hardship application to the Westpac Bank. The wife deposes at paragraph 61 of her Affidavit filed 24 February 2016 that the monthly repayments will resume from 6 April 2016 at $654 per month. Orders were made by consent by Judge Burchardt that the Victorian property be sold.
Pursuant to orders made on 16 November 2015, the Queensland property was sold in January 2016 for $650,000. The net proceeds of sale of $145,866 are currently held by the wife’s solicitors upon trust for the parties.
The wife further deposes in her Affidavit filed 24 February 2016 at paragraph 75 that the husband’s former lawyers have lodged a caveat over the title to the Victorian property to secure the husband’s outstanding legal costs of approximately $5,343. That debt will need to be repaid in order to secure the removal of the caveat.
On 2 October 2015, L disclosed to the wife that the husband had sexually abused her between January and October 2015. The husband has been charged with three counts of incest and three counts of indecent act with a child under 16 years of age as a result of those disclosures.
Following L’s disclosures an application for Intervention Order was made against the husband by a member of Victoria Police naming the wife, the two children of the marriage and L as affected family members. In October 2015, an Intervention Order was made against the husband by consent without admission for a period of 10 years, expiring on 4 October 2025.
In December 2015, the husband left Australia. It is the wife’s evidence that the husband is presently residing in Africa at an address unknown to her.
In February 2016 a warrant issued for the husband’s arrest as a result of his failure to appear in the Magistrates’ Court of Victoria in relation to the pending criminal charges.
Pursuant to the orders made by the Senior Registrar on 3 February 2016, the wife now has sole parental responsibility for J, who is five, and K, who is almost two. Orders were also made that J and K live with the wife. The Senior Registrar made furthers orders on that day restraining the husband by injunction from spending time or communicating in any way or by any means with J and K, or either of them. A similar injunction was made with respect to L.
The wife deposes that she now has minimal investments or savings, save for the parties’ modest equity in the Victorian property and the proceeds of sale of the Queensland property held in her solicitors’ trust account.
The wife works part-time for local businesses. Her income from that employment is approximately $913 per week.
K was diagnosed with severe to profound hearing loss when aged six months. The wife has been primarily responsible for K’s medical expenses in relation to treatment for that disability, including Cochlear implants and speech therapy. The wife deposes that K requires ongoing therapy to assist her in learning to communicate.
The wife further deposes that L and J will require long-term counselling assistance to support them following L’s disclosures of sexual abuse; those counselling sessions cost $80 per hour per child.
L and J attend separate private schools, with their school fees collectively amounting to approximately $9,638 per year. K attends day-care for four days a week at a yearly cost of approximately $4,000.
Save for one payment of $100 which cleared on 18 November 2015, the wife has received no child support from the husband since the parties’ separation. The wife states at paragraph 29 of her Affidavit filed 24 February 2016 that as at 7 December 2015, the arrears of child support payable by the husband was $444.68.
In his Financial Statement filed 14 October 2015 the husband deposed that he had an income from employment of approximately $66,000 per annum. There is no evidence before me as to the husband’s financial circumstances since his return to Africa.

Legal Principles

Property applications are to be determined in accordance with the provisions of Part VIII of the Family Law Act1975 (Cth) (“the Act”). The High Court considered the approach to be adopted in the determination of proceedings pursuant to s 79 of the Act in the decision of Stanford v Stanford (2012) 247 CLR 108. At page 121 the High Court stated that:
… The power to make a property settlement order must be exercised “in accordance with legal principles, including the principles which the Act itself lays down”.
(citation omitted)
Section 79(2) of the Act provides that a Court should not make an order for property settlement unless it is satisfied that it is just and equitable to do so. In determining an application pursuant to s 79, the Court is required to:-
·Identify the parties’ respective legal and equitable interests in property;
·Determine whether, in accordance with s 79(2) it is just and equitable to make a property settlement order having regard to the parties’ existing interests;
·Determine all relevant contributions of each of the parties;
·Identify and weigh against each other the matters set out in s 79(4)(a) to (c) inclusive;
·Consider the matters contained in s 79(4)(d) to (g) inclusive and make a determination as to what if any alteration should be made to the entitlements of the parties earlier assessed on account of their contributions, particularly having regard to the provisions of s 75(2).
The Act does not prescribe the order in which the matters in s 79(4) are to be considered. The circumstances of individual marriages as to their nature and form differ; how parties have organised and lived within the marriage are factors which may be relevant in the exercise of the discretion pursuant to s 79(2) of the Act.

Discussion

I must determine whether it is appropriate to exercise the jurisdiction of the Court in relation to property. Having regard to the history as detailed in the wife’s affidavits, the separation of the parties, and the circumstance of them holding jointly owned property, I am satisfied that it is appropriate that I exercise the jurisdiction.
The wife sets out in her Outline of Case the assets, liabilities and superannuation interests of the parties.
The evidence of the wife is that the assets of the Trust have been depleted as a result of the parties’ acquisition of property and chattels during the course of the relationship. The wife’s evidence is that funds from the Trust were applied to the purchase of motorcycles, motor vehicles, property and chattels. As a result, the wife deposes at paragraph 34 of her Affidavit filed 24 February 2016 that she has loans from the Trust of approximately $711,000.
The wife deposes at paragraph 30 of that affidavit that in excess of $235,000 of funds from the Trust have been applied for the benefit of the husband during the course of the relationship. Further, she deposes at paragraph 32 that the Trust expended in excess of $550,000 during the parties’ relationship on other family expenses.
The end result of the expenditure from the Trust during the course of the parties’ relationship is that their assets and liabilities as at the date of the hearing, based on the unchallenged evidence of the wife is as follows (rounded up or down):-
Assets
·Proceeds of sale of the Queensland property                   $146,000
·The Victorian property         E$185,000
less mortgage          E$145,000  $ 40,000
·Wife’s German motor vehicle  $    4,500
·Husband’s motorbike 1  $ 24,000
·Husband’s motorbike 2  $    2,000
·Husband’s motorbike wet-weather tyres                $    1,800
·Chattels in storage  E$ 10,000
$228,300
Liabilities
·Wife’s Visa card  $   3,500
·Wife’s Mastercard  $   2,000
·School fees  $   7,200
·Husband’s credit cards  $ 14,000
$ 26,700
Superannuation
·H Superannuation Fund (Husband)  $ 19,796
·I Super (Husband)  $ 13,050
·I Super (Wife)  $    2,000
$ 34,846
The parties’ net assets including superannuation are valued at approximately $236,446. That does not take into account the wife’s loan from the Trust. The financial statements for the Trust for the year end 31 March 2014 (annexure KLD8 of the Affidavit of the wife filed 24 February 2016) disclose that the principal asset of the Trust is the beneficiaries’ overdrawn loan account. Accordingly, were the Trust to be included in the parties’ list of assets and liabilities, the net effect would be that the Trust asset would be off-set by the liability of the wife to the Trust. Hence I have not included the Trust or the wife’s debt to it in the above summary of the parties’ assets and liabilities.

Contributions

The orders sought by the wife are that she retain the proceeds of sale of the Queensland property and the Victorian property, the German motor vehicle and the chattels in storage. Further, she seeks a superannuation split of the husband’s superannuation interests such that she receive 100 per cent of those interests. The wife proposes that the husband retain his motorbike 1, the motorbike 2 and the wet-weather tyres for the motorbike. The husband has retained those vehicles. The wife has no knowledge as to their current whereabouts. Accordingly the vehicles retained by the husband have not been valued. Based on the wife’s estimate as to the value of those vehicles, the husband will retain approximately 12 per cent of the parties’ net assets including superannuation.
It is submitted on behalf of the wife that orders in those terms are just and equitable, having regard to the overwhelming direct financial contribution made on behalf of the wife at the commencement of the relationship and during the relationship by virtue of her interest in the Trust. In support of that submission the wife points to the substantial direct financial contributions made on her behalf by the Trust to the acquisition of the Queensland property and also to the motor vehicles to be retained by the husband. I accept that evidence.
The wife deposes that during the parties’ six year cohabitation, the husband had periods of unemployment. The wife supported the family using moneys from the Trust during those periods.
Having regard to the history of contributions to the acquisition, conservation and improvement of the parties’ assets by the Trust, particularly the Queensland property, the discharge of the husband's liability at the commencement of the relationship and the purchase of the business as well as the contributions by the Trust to the parties’ living expenses, I accept the submission made on behalf of the wife that she has made substantial direct contributions to the acquisition, conservation and improvement of the parties’ assets during the marriage. .
Since the parties’ separation, the wife has had the sole care of the parties’ children. She has cared for the children without financial assistance or support from the husband.
Having regard to the wife’s contributions in every category of consideration under s 79(4) of the Act, I am satisfied that those contributions were overwhelmingly greater than those made by the husband. The wife’s unchallenged evidence is that the Trust assets which were held at the commencement of cohabitation were applied by the parties to the acquisition of the assets held by them today. Further, those assets were also applied to meet the parties’ day-to-day living expenses.

Section 75(2) Factors

The wife is aged 43 years and is engaged in employment.
The husband is aged 42 years and his current employment status is unknown.
The wife has the sole care for the two children of the marriage, aged five and almost two years as well as her almost 12 year-old daughter from a previous relationship.
The parties’ youngest child K, aged almost two years is a child who has special needs requiring on-going therapy and support. When child care is required for K, the carer must have Auslan training to ensure that she can communicate with K; the wife is solely responsible for bearing the costs of that specialist care.
Save for one payment, the husband had provided no child support since the parties’ separation. I am satisfied that the husband is unlikely to make any financial contribution to the support of the children in the future, having regard to his actions in leaving the jurisdiction following the commencement of criminal proceedings against him.
The pool of assets available for division is extremely modest. Realistically, the wife is in a far worse financial position now than when the relationship commenced. The wife’s positon has shifted from one where the Trust settled by her owned property and investments which she estimates were valued at approximately $900,000 to a position where its primary asset now is the beneficiary loan accounts which, having regard to the wife’s current financial circumstances, are unlikely to be re-paid.
I am satisfied having regard to those factors that the orders sought by the wife are just and equitable. This is particularly so, given the unfortunate reality that the husband is providing no child support or physical assistance with respect to the care of the children. Given the allegations raised against him there is little prospect of any change in that circumstance in the foreseeable future.
Gibbs J noted in the decision of De Winter & De Winter (1979) 4 Fam LR 583 at page 589 that the discretion conferred upon the Family Court to make orders affecting financial interests under s 79 of the Act is “extraordinarily wide”.
In my view, having regard to all of the above factors, a just result is that the wife retains the proceeds of sale of the Queensland property and the Victorian property as well as the chattels, currently held in storage. Further, having regard to the modest amounts held in superannuation, I am satisfied that it is just and equitable that there be a superannuation splitting order to effect a split of funds held in the husband’s superannuation funds to the wife’s superannuation fund. The reality is that given the ages of the parties those funds will not be able to be accessed for many years. Nonetheless, it provides a nest-egg for the wife’s future in circumstances where she is unlikely to be in a position to save for her future given her parenting responsibilities to three young children.

Costs

The wife in the amended draft orders also sought an order that the husband pay her costs on an indemnity basis.
The general rule is that each party to proceedings pursuant to the Act shall bear their own costs.
Section 117(2) provides that if the court is of the opinion that there are circumstances that justify it in doing so, the court may, subject to the provisions of subsections (2A), (4), (4A) and (5) and the Rules of Court make such order as to costs and security for costs as the court considers just.
Section 117(2A) sets out the matters that the court should have regard to in considering whether to make an order for costs. Those circumstances are:-
(a)the financial circumstances of each of the parties to the proceedings;
(b)whether any party to the proceedings is in receipt of assistance by way of legal aid and, if so, the terms of the grant of that assistance to that party;
(c)the conduct of the parties to the proceedings in relation to the proceedings including, without limiting the generality of the foregoing, the conduct of the parties in relation to pleadings, particulars, discovery, inspection, directions to answer questions, admissions of facts, production of documents and similar matters;
(d)whether the proceedings were necessitated by the failure of a party to the proceedings to comply with previous orders of the court;
(e)whether any party to the proceedings has been wholly unsuccessful in the proceedings;
(f)whether either party to the proceedings has made an offer in writing to the other party to the proceedings to settle the proceedings and the terms of any such offer; and
(g)such other matters as the court considers relevant.
The wife principally relies upon the following matters in support of her application that the husband pay her costs:-
·The conduct of the husband in relation to the proceedings;
·That the husband has been wholly unsuccessful in the proceedings; and
·The financial circumstances of the parties to the proceedings.
I have set out the financial circumstances of each of the parties earlier in this judgment. In summary, the wife has a modest income from her part-time employment. The husband’s current income is unknown.
Neither party is in receipt of legal aid.
As to conduct, the wife relies upon the following matters:-
·The husband’s failure to appear at any Court event since he commenced the proceedings;
·That the husband commenced proceedings without seeking certification pursuant to s 60I of the Act.
Having regard to the procedural history, which I have set out earlier in the judgment, I am satisfied that there is justification for the wife’s criticisms of the husband’s conduct. Having commenced proceedings, the husband has taken no active role in the matter. He has failed to attend Court hearings and has otherwise thwarted any prospect of the matter resolving at an earlier stage by his non-attendance at Court.
The wife has entered into a costs agreement with her lawyers. That agreement is Annexure KLD-12 to her Affidavit filed 24 February 2016. As at 3 February 2016, the wife had incurred costs totalling $17,200 pursuant to that agreement. Further, the wife deposed at paragraph 71 of her Affidavit that she anticipated further costs of approximately $7,000 in relation to the undefended hearings with respect to parenting and property matters.
The husband had been wholly unsuccessful in the proceedings. He has not appeared before the Court to press his application for property orders. Accordingly, I will dismiss that application at the conclusion of these proceedings. His application for final parenting orders has already been dismissed. That this is so is due to the husband’s failure to participate and prosecute that application.
However, whilst the wife is critical of the husband filing his applications to the Court, the reality is that Court orders were necessary in order to end the parties’ financial relationship. Inevitably, the wife would have incurred legal costs in achieving such finality, even were there no issues as to the husband’s conduct in the context of these proceedings. Indeed, had the husband participated in the proceedings there was potential for greater delay in the conclusion of the matter with the likelihood that the wife would have incurred further costs.
The orders I will make with respect to the wife’s property application are that she retain all of the parties’ interests, save for the motor vehicles retained by the husband. Further the wife will have the benefit of the superannuation splitting orders transferring the husband’s superannuation interests to her.
Having regard to those circumstances I am not satisfied that a costs order in favour of the wife is warranted with respect to her application.

THE ORDERS

The orders that I will make are as follows:-
(1)That paragraphs 6, 14 and 15 of the orders made by Judge Burchadt in the Federal Circuit Court of Australia on 16 November 2015 be discharged.
(2)That the husband do all such acts and things as may be required to transfer to the wife his interest in the chattels contained in the storage units …, … at B Storage, Suburb A in the State of Queensland (“the storage facility”) and in order to give effect to this order the chattels be delivered to the wife at C Street, D Town in the State of Victoria (“C Street”).
(3)That the wife shall be solely entitled to all the chattels from the storage facility including furniture and children’s toys.
(4)That the proceeds of sale of E Street, Suburb F in the State of Queensland currently held in trust by Antippa Lawyers be paid to the wife.
(5)That the property situate at and known as G Street, D Town in the State of Victoria (“G Street”) be sold and the wife be the sole signatory in relation to the sale.
(6)That the wife be authorised to sign all documents and do all such acts and things as may be required on behalf of the husband and the wife to effect the sale of G Street.
(7)That upon the sale of G Street the proceeds of sale be applied as follows:-
(a)payment of all costs and expenses of sale including legal costs and disbursements, agents commission, valuer fees and auction expenses, if any;
(b)discharge of the mortgage registered against the title to G Street;
(c)payment of the amounts required to pay all municipal and water rates outstanding; and
(d)payment of the balance then remaining to the wife.
(8)That the wife be solely entitled to the Bond paid for the lease of C Street.
(9)That paragraphs numbered 10 to 12 (inclusive) of these orders are binding on the Trustee of the H Superannuation Fund, which is Equity Trustees Limited A.C.N. ….
(10)That a base amount of $19,912.23 be allocated to the wife out of the interest of the husband’s interest in the H Superannuation Fund.
(11)That pursuant to s 90MT(1)(a) of the Family Law Act 1975 (Cth) (“the Act”) whenever a splittable payment becomes payable in respect of the husband’s interest in the H Superannuation Fund, the wife shall be entitled to be paid an amount calculated in accordance with Pt 6 of the Family Law (Superannuation) Regulations 2001 (Cth) using the base amount and there be a corresponding reduction in the entitlement of the person to whom the splittable payment would have been made but for these orders.
(12)That the Trustee of the H Superannuation Fund shall do all such acts and things and sign all such documents as may be necessary to:-
(a)calculate, in accordance with the requirements of the Act and the Family Law (Superannuation) Regulations 2001(Cth), the entitlement created for the wife by paragraph 10 of these orders;
(b)pay the entitlement whenever the Trustee makes a splittable payment from the husband’s interest in the H Superannuation Fund.
(13)That paragraphs 10 and 11 of these orders have effect from the operative time and the operative time is four business days after service of these orders upon the Trustee of the H Superannuation Fund.
(14)That paragraphs numbered 15 to 17 (inclusive) of these orders are binding on the Trustee of the I Superannuation Fund, which is BT Funds Management Limited A.C.N. ...
(15)That a base amount of $11,819.78 be allocated to the wife out of the interest of the husband’s interest in the I Superannuation Fund.
(16)That pursuant to s 90MT(1)(a) of the Act whenever a splittable payment becomes payable in respect of the husband’s interest in the I Superannuation Fund, the wife shall be entitled to be paid an amount calculated in accordance with Pt 6 of the Family Law (Superannuation) Regulations 2001 (Cth) using the base amount and there be a corresponding reduction in the entitlement of the person to whom the splittable payment would have been made but for these orders.
(17)That the Trustee of the I Superannuation Fund shall do all such acts and things and sign all such documents as may be necessary to:-
(a)calculate, in accordance with the requirements of the Act and the Family Law (Superannuation) Regulations 2001(Cth), the entitlement created for the wife by paragraph 15 of these Orders;
(b)pay the entitlement whenever the Trustee makes a splittable payment from the husband’s interest in the I Superannuation Fund.
(18)That paragraphs 15 and 16 of these orders have effect from the operative time and the operative time is four business days after service of these orders upon the Trustee of the I Superannuation Fund.
(19)That 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;
(b)monies standing to the credit of the parties in any joint bank account are to become the property of the wife;
(c)insurance policies remain the sole property of the beneficiary 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 in any real or personal estate is hereby expressly severed.
(20)That pursuant to s 106A of the Act a Registrar of the Family Court of Australia at Melbourne be appointed to execute all documents and do all such acts and things necessary on behalf of the husband to give validity and operation to these orders.
(21)That the wife forthwith cause to be served upon the husband at his email address … the following:
(a)a sealed copy of these orders;
(b)reasons for judgment;
(c)a copy of the letter from Antippa Lawyers to H Superannuation dated 2 March 2016 and their response thereto; and
(d)a copy of the letters from Antippa Lawyers to I Super dated 2 March 2016 and 11 March 2016 their response thereto.
(22)That as soon as practicable the wife file an affidavit of service confirming her compliance with order 21 hereof.
(23)That the husband have liberty to apply in relation to these orders conditional upon the husband filing and serving upon the wife by 4.00 pm on 9 June 2016 the following:
(a)an application in a case; and
(b)an affidavit setting out his reasons for failing to attend the hearing on 2 March 2016.
(24)That all extant applications be otherwise dismissed.
IT IS CERTIFIED
(25)That pursuant to r 19.50 of the Family Law Rules 2004 (Cth) this matter reasonably required the attendance of counsel and instructing solicitor.
IT IS DIRECTED
That all documents produced to the Court pursuant to subpoena and exhibits relied upon by the parties be returned by the subpoena clerk of the Family Court of Australia, Melbourne Registry, to the person or organisation who produced same after the expiration of thirty (30) days from the date of these orders, or otherwise upon the conclusion of any appeal.

I certify that the preceding ninety-eight (98) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Johns delivered on 19 May 2016

Associate:

Date: 19 May 2016

[2016] FamCA 510

19 May 2016

Key Legal Topics

Areas of Law

Family Law

Legal Concepts

Costs

Jurisdiction

Remedies

Procedural Fairness