DOCKLANDS & MARSHMAN
[2011] FamCA 144
•4 March 2011
FAMILY COURT OF AUSTRALIA
| DOCKLANDS & MARSHMAN | [2011] FamCA 144 |
| FAMILY LAW - DOMESTIC RELATIONSHIP – Exercise of jurisdiction of the Supreme Court of the Australian Capital Territory pursuant to the Jurisdiction of Courts (Cross-vesting) Acts – Property proceedings – Extent of contributions of the parties – Relationship of short duration – Assets and financial resources located both in the Australian Capital Territory and the State of New South Wales – Territorial application of the Domestic Relationships Act 1994 (ACT) – Consideration of principles enunciated by Murphy J in Hackshaw & Hackshaw [2010] FamCA 1123 on “add-backs” |
| Domestic Relationships Act 1994 (ACT): s 15(1), s 19(2) Family Law Act 1975 (Cth): s 75(2) Jurisdiction of Courts (Cross-vesting) Act 1987 (Cth): s 5(1) Jurisdiction of Courts (Cross-vesting) Act 1993 (ACT): s 5(1) |
| Aldridge & Mazzotti [2009] FamCA 1048 Chorn & Hopkins (2004) FLC 93-204 Coghlan & Coghlan (2005) FLC 93-220 Docklands & Marshman [2010] FamCA 611 Hackshaw & Hackshaw [2010] FamCA 1123 Hallinan v Witynski (1999) DFC 92-219 Kouper v Kouper (No. 3) [2009] FamCA 1080 Kowaliw & Kowaliw (1981) FLC 91-092 Warnold & Bleauchamp [2010] FamCAFC 154 Wunderwald & Wunderwald (1992) FLC 92-315 |
| APPLICANT: | Mr Docklands |
| RESPONDENT: | Ms Marshman |
| FILE NUMBER: | CAC | 398 | of | 2009 |
| DATE DELIVERED: | 4 March 2011 |
| PLACE DELIVERED: | Melbourne |
| PLACE HEARD: | Canberrra |
| JUDGMENT OF: | Faulks DCJ |
| HEARING DATE: | 15 November 2010 10 December 2010 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Self-represented litigant |
| COUNSEL FOR THE RESPONDENT: | Ms L. Keogh (15 November 2010) Ms J. Godstchalk (10 December 2010) |
| SOLICITOR FOR THE RESPONDENT: | KJB Law |
Orders
IT IS ORDERED THAT:
The applicant, Mr Docklands, forthwith provide vacant possession of the property known as the property at K, in the Australian Capital Territory and will provide forthwith all keys to the premises to the offices of KJB Law.
The applicant, Mr Docklands, be and is hereby restrained (other than for the purposes of compliance with any Orders made by this Court) from making any withdrawals or draw-downs from the St. George Bank Loan Account Numbers … and ….
The applicant, Mr Docklands, is enjoined from making any withdrawals or draw-downs from the St. George Bank Loan Account Number … except for the purposes of effecting the payment to the respondent set out hereunder in these Orders.
(a) Once the payment has been effected to the respondent by the applicant, the Loan Account Number … may be used by the applicant as he seeks fits.
(b) KJB Law will notify the Registrar of the Family Court of Australia in Canberra as to when the payment that is to be made by the applicant has been made to the respondent.
(c) The Registrar of the Family Court of Australia in Canberra is to notify the St. George Bank that the payment has been made in accordance with these Orders as soon as practicable after receiving notice from KJB Law.
(d) A copy of these Orders will be provided forthwith by the Registrar of the Family Court of Australia to the St. George Bank. A copy may also be provided by the respondent, Ms Marshman, to the St. George Bank.
Pursuant to s 25(1) of the Domestic Relationships Act 1994 (ACT), in relation to the property at K:
(a) The respondent, Ms Marshman, is declared the Trustee for sale of the property at K and shall proceed to sell the property as expeditiously as possible.
(b) The respondent or her legal representative(s) on her behalf will do all such things as may be necessary bring about the sale of the property at K until completion of the sale.
That upon the sale of the property at K, the respondent will cause the sale proceeds to be disbursed as set out hereunder:
(a) To meet the costs, commission and expenses of the sale;
(b) To pay any outstanding rates or other statutory charges owing with regard to the property at K;
(c) To discharge any mortgage(s) or any loan(s) secured by the property at K at the date of this Judgment;
(d) The balance to be distributed as to 80 per cent to the respondent, Ms Marshman, and as to 20 per cent to the applicant, Mr Docklands.
Within 14 days of the exchange of contracts on the property at K, the applicant, Mr Docklands, will pay to the respondent, Ms Marshman, such sum that may enable her to receive 80 per cent of the net property of the parties in accordance with the below formula:
(Gross sale price of property at K) – (Expenses and disbursements outlined in Order 4(a) to (c) above) + (Value of the applicant’s shareholdings as per the findings of this Judgment ($143,171)) multiplied by 0.80 = Amount due to the respondent.
For example:
$480,000 gross sale price of property at K
Less $102, 650 + $51,601 + $15,000 (used only as an example of “other” expenses)
Plus $143,171
Total = $453,920
Multiplied by 0.80
Payment to the respondent would be $363,137.
Pursuant to s 26(1) of the Domestic Relationships Act 1994 (ACT), a Registrar of the Family Court of Australia in Canberra is appointed to execute any Deed or Instrument in the name of the applicant, Mr Docklands, that is necessary to cause the property at K to be listed for sale, by way of private treaty and for the sale to be completed including, though not limited to, the discharge of any mortgage(s) secured by the property at K at the date of this Judgment.
(a) It shall be sufficient warrant and authorisation to a Registrar of the Family Court of Australia to execute any document that KJB Law certify to the Registrar that the applicant has failed to execute and document he was requested to sign within 48 hours of his being notified that such document is available at the Family Law Registry in Canberra for signature.
Within 30 days, the applicant at his own expense will return or cause to be returned all chattels listed hereunder to the respondent (at an address to be nominated by the respondent though her legal representatives):
(a) The Respondent’s clothing;
(b) The Respondent’s snorkel and mask;
(c) A single air mattress and foot pump;
(d) A white cane chair;
(e) A white cane table;
(f) Two brown cushions;
(g) Blue check woollen blanket;
(h) Christmas decorations other than lights;
(i) Dining Table and four chairs;
(j) Floral seat cushions for dining table;
(k) 8 floral placements that match dining chair cushions;
(l) White candle and metal stand;
(m) Cream sofa bed from Freedom Furniture;
(n) 2 cream cushions that match the cream sofa bed;
(o) 2 brown and cream stripy cushions;
(p) 3 black floral pillos;
(q) 8 person dinner set with green and white flowers;
(r) 3 piece enamel bowl and lid set;
(s) Small Christmas Bowl and pate knife set;
(t) Melamine dish with koala picture;
(u) Food processor and attachments;
(v) 7 piece glass dessert bowl set;
(w) Santa Sleigh;
(x) Wooden salt and pepper set with “Port Villa” written on it;
(y) Brown pottery fruit bowl;
(z) Teapot and coaster with hand-knitted tea cosy;
(aa) Coffee plunger and coaster;
(bb) Robert Gordon pottery kitchen utensil holder;
(cc) Green spice rack;
(dd) All cake pans;
(ee) Blue enamel jug;
(ff) Metal measuring container;
(gg) All “Tupperware” branded containers;
(hh) Small metal chimes made by the Respondent’s deceased sister-in-law L;
(ii) Red stripey cotton hammock.
Subject to these Orders, the applicant and the respondent are otherwise declared to be the owners in law and in equity of all items of property, real or otherwise, in their possession.
All extant applications are dismissed, except as to costs.
(a) Any application by either party for costs will be made in writing (by application) accompanied by written submissions (if any) filed on or before 4.00 pm on 28 March 2011.
(b) If no such application for costs is made, the matter is removed from the Pending Cases Inventory.
(c) If such application is made the application will be determined on the written submissions in Chambers.
(d) It is noted that an application for costs should properly be made with reference to Court Procedure Rules 2006 (ACT).
IT IS NOTED that publication of this judgment under the pseudonym Docklands & Marshman is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
| FAMILY COURT OF AUSTRALIA AT CANBERRA |
FILE NUMBER: CAC 398 of 2010
| Mr Docklands |
Applicant
And
| Ms Marshman |
Respondent
REASONS FOR JUDGMENT
Introduction
These proceedings were initiated by the applicant, Mr Docklands, pursuant to s 15(1) of the Domestic Relationships Act 1994 (ACT) (“the DR Act”). These proceedings are not overly complex because of their subject matter. The matter is, however, complicated by Mr Dockland’s behaviour in the proceedings before the Court. The respondent to these proceedings is Ms Marshman.
The Court is asked to exercise power pursuant to s 15(1) the DR Act; the proceedings being cross‑vested to the Family Court of Australia from the Supreme Court of the Australian Capital Territory (ACT). This is achieved by the exercise of power under the Jurisdiction of Courts (Cross-vesting) Acts of the Commonwealth and of the Australian Capital Territory (ACT).[1]
[1] Jurisdiction of Courts (Cross-vesting) Act 1987 (Cth) s 5(1) and Jurisdiction of Courts (Cross-vesting) Act 1993 (ACT) s 5(1) refers.
The proceedings have been prolonged as a result of transfers between the Supreme Court of the ACT, the Federal Magistrates Court of Australia and the Family Court. An Originating Claim was filed in the Supreme Court on 18 March 2008 by the respondent.
Proceedings in relation to the parties’ child, K, born in August 2002, have been elongated but finally determined. On 18 March 2009, after the applicant had stormed out of the Court room indicating that he did not seek any orders or to participate in relation to proceedings before the Court, I made orders that the respondent have sole parental responsibility for the child and that the child live with the mother. I also ordered that the father have liberty to make an application to the Family Court in relation to the time that he might spend with the child, but otherwise he would not spend time with the child.
The applicant later commenced proceedings in the Federal Magistrates Court, which eventually came on before Neville FM in August 2009.
On 23 March 2010, Master Harper transferred the matter to the Family Court of Australia. The Federal Magistrates Court does not have jurisdiction under the Jurisdiction of Courts (Cross-vesting) Acts. Neville FM transferred the children’s proceedings to the Family Court on 27 May 2010.
Final parenting orders in relation to the parties’ child were made by me on 6 July 2010. I was satisfied that the applicant had notice of the proceedings and chose not to participate. I ordered that the respondent have sole parental responsibility for matters relating to the child’s care, welfare and development. I also ordered that the applicant spend no time with the child and that his communication with the child be substantially limited (and indeed, submitted to the Registry Manager of the Family Court to determine if such material should be on forwarded to the applicant). I do not propose to outline the findings of fact made in my Judgment relevant to those orders: see Docklands & Marshman [2010] FamCA 611. It is, however, fair to state that the orders I made apropos the child not seeing or communicating with his father have had a substantial and very negative effect on the applicant’s state of mind.
The proceedings before the Court on 15 November 2010 and 10 December 2010 were very challenging for all involved. On the first occasion, the applicant entered the Court room wearing war paint on his face. He later revealed during the course of that day that he had a rope noose around his neck (hidden under a jumper) which he stated that he intended to use to kill himself. On both hearing dates, the applicant varied in his mood from being melancholy, despondent, highly aggressive, very loud, obnoxious, philosophical and threatening. He insulted me and counsel and the solicitor representing the respondent on many occasions. He used profane language (the word “fuck” was used 45 times; the word “shit” was used three times; and the word “bullshit” four times over the course of the two hearing days). He fluctuated between maintaining that I was corrupt and engaged in a conspiracy against justice and that I was an impartial and fair‑minded referee. He wished the respondent dead.[2]
[2] Transcript of proceedings, 15 November 2010, 28.
I became so concerned with the applicant’s presentation that on 10 December 2010 I asked if he would want his interests to be represented by a Case Guardian. He declined this opportunity.[3]
[3] Transcript of proceedings, 10 December 2010, 166.
On both hearing dates, the applicant expressed on many occasions that he intended to kill himself. As a result of his behaviour, the proceedings had to be adjourned throughout both days from time-to-time in order that he might recompose himself.
The evidence presented by the applicant in examination‑in‑chief, in cross‑examination, and in re-examination was, put simply, befuddled. He protested at almost every opportunity in response to any question asked, either of him or of the respondent. He interjected throughout the proceedings, often when counsel or I were asking questions of other witnesses or during exchanges between the Bench and the Bar table. He threatened to “burn down” two parcels of real property held by the parties, rather than see the respondent retain either property.[4] He would scream at, abuse and beg the respondent from across the Court room. Just prior to the close of the proceedings on 10 December 2010 (midway through Ms Godstchalk’s final submissions), the applicant left the Court indicating his disgust.[5]
[4] Transcript of proceedings, 10 December 2010, 227.
[5] Ibid.
All in all, the proceedings before the Court were tense and difficult.
In contrast, the respondent gave her evidence in a straightforward manner. That is not to say that I accept all components of her evidence without question. I will indicate, where possible, where I accept the evidence of either the applicant or the respondent if there is a conflict between that evidence. Unless I otherwise indicate, where I make a statement of fact, it is my finding of that fact.
Given the nature of the evidence as presented (or not presented) by the applicant, it will be necessary to consider the authorities in relation to deliberate (and non-deliberate) non‑disclosure of property and financial resources.
As a matter of practice and where necessary throughout my Reasons for Judgment, I have replicated the written submissions and relevant evidence before the Court without correction.
Order sought by the Parties
The orders sought by the respondent appear at Annexure 1. Ms Godstchalk, counsel for the respondent on 10 December 2010, identified that the respondent’s case was that the parties contributions from the commencement of the relationship until the time of separation were approximately 55 per cent in favour of the respondent and 45 per cent in favour of the applicant.
The respondent then sought an adjustment of 10 per cent be made recognising the contributions she made after separation to the time of hearing, particularly for her sole care of the parties’ child. The respondent also sought a further adjustment of 10 per cent pursuant to s 19(2) of the DR Act. On the respondent’s case, this would mean that the parties’ interests in property be adjusted as to 65 per cent to the respondent and 35 per cent to the applicant.[6]
[6] Transcript of proceedings, 10 December 2010, 218.
In response to a question from the Bench, the applicant seemed to suggest that the respondent should only receive a payment of $87,000, reflecting his estimation of the respondent’s contributions over the course of the relationship.[7] The applicant expressed, in no uncertain terms, that the property situated at M, New South Wales (NSW), held great sentimental value to him and that he did not want it to be sold. He also did not want the property situated at K, ACT to be sold, but acquiesced to it being sold and the proceeds being held on trust in a solicitor’s account.[8] The applicant also sought that the debts secured against the property be paid out (approximately $153,000).
[7] Ibid, 169.
[8] Ibid, 170.
Relevant Law
In Warnold & Bleauchamp,[9] the Full Court of the Family Court of Australia (Bryant CJ, Finn & Boland JJ) relevantly observed the following statements about the operation of DR Act:
[9] Warnold & Bleauchamp [2010] FamCAFC 154, [48] – [51].
48.Section 15 of the DR Act is in broad terms similar to s 79 of the [Family Law Act 1975 (Cth)]. It provides:
(1) On application by a party to a domestic relationship, a court may make an order adjusting the interests in the property of either or both of the parties that seems just and equitable to it having regard to:
(a) the nature and duration of the relationship; and
(b) the financial or non-financial contributions made directly or indirectly by or on behalf of either or both of the parties to the acquisition, conservation or improvement of any of the property or financial resources of either or both of them; and
(c) the contributions (including any in the capacity of homemaker or parent) made by either of the parties to the welfare of the other or any child of the parties; and
(d) the matters referred to in section 19 (2), as far as they are relevant; and
(e) such other matters (if any) as the court considers relevant.
(2) A court may make an order under subsection (1) whether or not it has declared the title or rights of a party in respect of the property.
49.Section 19(2) of the DR Act (which is not identical to s 75(2) of the Act but which provides the basis for an “adjustment” in favour of one or other party after the assessment of contribution) provides as follows:
(2) In exercising a power under subsection (1), a court shall have regard to—
(a) the income, property and financial resources of each party; and
(b) the physical and mental capacity of each party for appropriate gainful employment; and
(c) the financial needs and obligations of each party; and
(d) the responsibilities of either party to support any other person; and
(e) the terms of any order made or proposed to be made under section 15 with respect to the property of either or both of the parties; and
(f) any payments made to the applicant, under an order of a court or otherwise, in respect of the maintenance of a child or children.
50.In considering the provisions of the DR Act we are satisfied that we should have regard to the approach to the evaluation of contributions adopted under the [the Family Law Act 1975 (Cth)]. In so doing we accept as appropriate to this approach the caveats referred to by Crispin J in Crellin v Robertson (2004) DFC 95-296 in paragraphs 22-25. At paragraph 25 his Honour said:
In some cases the nature of the relationship could be quite dissimilar to that of a marriage and little guidance might be obtained from decisions of the Family Court of Australia concerning the division of property between separating spouses. The breadth of the discretion provided by s 15 presumably reflects a legislative intention to ensure that the court can make orders that will be just and equitable in any case that may properly come before it. Accordingly, whilst I accept that decisions of the Family Court of Australia may often provide useful guidance, I do not accept that they should be followed in all applications of this kind. In Davey v Lee (1990) DFC ¶95-084; (1990) 13 Fam LR 688 at 689 McLelland J said that what is required in dealing with an application under s 20 of the De Facto Relationships Act 1984 (NSW) is “a holistic value judgment in the exercise of a discretionary power of a very general kind”. This formulation was adopted by a Full Court of the Family Court of Australia in Harris v Harris (1991) FLC ¶92-254 at 78,705 in relation to applications under s 79 of the Family Law Act 1975 (Cth) and by Cooper J in Ferris v Winslade at [33] in relation to applications under s 15 of the Act.
51.We observe at this juncture that there is no provision in s 19(2) of the DR Act identical to s 75(2)(c) the [Family Law Act 1975 (Cth)] which requires the court in dealing with property proceedings under s 79 of the [Family Law Act 1975 (Cth)] to take into account whether either party has the care and control of a child of the marriage who has not attained the age of 18 years. This difference in the legislation was referred to by the Full Court (Lindenmayer, Finn and Warnick JJ) in Hallinan v Witynski (1999) DFC 92-219 at paragraph 60 as follows:
We have some reservations whether, in proceedings under the [DR Act], it is open to the Court, in considering the s.19(2) factors, to have regard to the burden of the future care and supervision of a child of the relationship, as distinct from the financial support of such a child. Section 19(2) has no equivalent to s.75(2)(c) of the [Act]. Section 19(2)(d) is confined to “responsibilities of either party to support any other person” (emphasis added), and all the other paragraphs of that sub-section have a distinctly financial flavour. We suppose, however, that it is possible that s.15(1)(e), which enables the Court to have regard to “such other matters, if any, as the Court considers relevant” is wide enough to encompass the physical and emotional demands of child care and supervision. However, as this issue was not raised or argued in this case, we refrain from expressing any concluded view about it. (original emphasis)
Findings of Fact
I make the following findings of fact. My findings are based on my consideration of:
· the Defence filed by the applicant in the Supreme Court of the ACT on 20 June 2008; his Financial Statement filed in the Supreme Court of the ACT on 2 July 2008; his Affidavit filed in the Family Court on 12 November 2010; and his evidence given on 15 November 2010 and 10 December 2010, as well as his demeanour and behaviour in the Court room;
· the Affidavit of the respondent, filed in the Supreme Court of the ACT on 29 January 2009; her Financial Statement filed in the Family Court on 6 December 2010; and her evidence given on 15 November 2010 and 10 December 2010, as well as her demeanour in the Court room;
· the Affidavit of Mr H, filed in the Family Court in support of the respondent on 8 October 2010; and
· the Affidavit of Mr L, filed in the Supreme Court of the ACT in support of the respondent on 10 March 2009.
I have had the benefit of reading the transcript of proceedings of 15 November 2010 and 10 December 2010. I have given very careful consideration to the Exhibits in these proceedings.
The applicant’s cross-examination of the respondent was marginally directed to some of the matters that were relevant to my determination under the DR Act. Most of his cross-examination of the respondent was not relevant and related to his views about issues of distrust between the parties when they were together and the parenting of their child.
The applicant was born in 1964 and is presently aged 46 years.
The respondent was born in 1964 and is presently aged 46 years.
The applicant has a knee injury and has had surgery. No medical evidence was adduced as to the extent that this injury may inhibit or preclude his gainful employment or how this impacts upon his physical capacity in other facets of life. I have observed the applicant during the hearing dates on 15 November 2010 and 10 December 2010. I am not qualified to diagnose mental illness. I do, however, express my concern for the applicant’s state of mind based on my observations of his wild behaviour in the Court room. On balance, he did not demonstrate a rational, structured or reasoned process in the way he conducted himself in the proceedings. I have no medical evidence as to whether or not the applicant is suffering from a mental illness. I do not take this into my consideration of the relevant factors to be taken into account under the DR Act. The respondent has, however, conceded that her claim should be adjusted on the basis that it is unlikely in the future that the applicant will be able to maintain gainful employment. I take that matter into account accordingly.
The respondent is in good health.
The applicant owned a property at K, ACT before the relationship commenced. This property was secured against an encumbrance of a line of credit of $158,000.
The parties commenced their relationship in May 2002.
On 24 May 2002, the respondent sold a property situated at E, ACT which was held in her name. The proceeds of sale of that property of $137,969.14 were deposited into the respondent’s bank account on 24 May 2002.[10] A further sum of $11,135 was deposited on 11 June 2002,[11] which was likely to be the balance of the deposit paid after deduction of the real estate agent’s commission. The total proceeds from the sale of the property at E, ACT were approximately $149,105.
[10] Exhibit “DFW15”.
[11] Exhibit “DFW14”.
In June 2002, the respondent purchased a Mitsubishi motor vehicle for approximately $28,600.[12] This purchase was made from the $149,104 proceeds of sale of the property at E, ACT.
[12] Ibid.
In mid-2002, the applicant sold a property situated at Q, NSW for $33,000.[13] This property was owned by him prior to the commencement of the relationship. The applicant used the proceeds of sale of that property to purchase a property situated at M, NSW for the sum of $33,000.[14]
[13] Defence of the applicant, filed in the Supreme Court of the ACT, 20 June 2008, [5].
[14] Ibid, [6].
In August 2002, the parties’ child, K, was born. The respondent did not work from this time until early 2004.
The respondent’s gross income during the course of the relationship and at the time of hearing before me was as follows:[15]
[15] Affidavit of the respondent, filed in the Supreme Court of the ACT, 29 January 2009, [22]; Transcript of proceedings, 15 November 2010, 84.
a.Between May and July 2002, she earned a salary of $39,000 per annum;
b.Between July 2002 to June 2003, she received $10,260 of income for work undertaken in the applicant’s business; and $6,000 between July 2003 to March 2004 from the same source;
c.Between early 2004 and June 2004, she earned income on a pro-rata salary of $34,890 per annum (based on a four day working week);
d.Between July 2004 and June 2005, she earned income on a pro-rata salary of $36,370 per annum (based on a four day working week);
e.Between July 2005 and June 2006; she earned income on a pro-rata salary of $41,000 per annum (based on a four day working week);
f.Between July 2006 and December 2006, she earned income on a pro-rata salary of $43,000 per annum (based on a four day working week);
g.Between December 2006 and June 2007, she earned income on a pro-rata salary of $47,000 per annum (based on a four day working week);
h.Between July 2007 and June 2008, she earned income on a pro-rata salary of $48,876 per annum (based on a four day working week);
i.From July 2008 to January 2009, she earned income on a pro-rata salary of $51,540 per annum (based on a four day working week); and
j.At the date of the hearing, she earned income on a pro-rata salary of $59,000 per annum (based on a four day working week)
The respondent qualified her evidence in cross-examination on 15 November 2010, agreeing with the applicant’s proposition that she had received the sum of $10,000 and $13,000 from the applicant during the period when she did not work full-time, and had possibly also received the sum of $15,000.[16]
[16] Transcript of proceedings, 15 November 2010, 100.
Between August 2002 and January 2003, the applicant deposited a total sum of $111,000 into the respondent’s bank account.
Between 15 October 2003 and 3 April 2006, the respondent gave the applicant a total sum of $115,000 for the purposes of investing in shares. It would appear that these funds were derived from the savings she had from the proceeds of sale of her property at E, ACT. Those payments were as follows:[17]
[17] Affidavit of the respondent, filed in the Supreme Court of the ACT, 29 January 2009, [40]; Transcript of proceedings, 15 November 2010, 79 – 81.
a.On 15 October 2003, $20,000;
b.On 28 October 2003, $5,000;
c.On 21 June 2004, $60,000;
d.On 22 June 2004, $10,000;
e.On 22 June 2004, $10,000;
f.On 27 February 2006, $5,000;
g.On 1 March 2006, $5,000;
h.On 17 March 2006, $5,000;
i.On 3 April 2006, $5,000.
I note that this actually totals $125,000, not the $115,000 contended for by the respondent. In any event, from mid-2003 to mid-2006, the respondent transferred to the applicant a total sum of approximately $233,000 from her ING bank account. Part of this sum was expended on the costs of building the house at M.
In June 2003, the applicant commenced building the house at M, NSW.
Sometime in 2003, the applicant received the sum of $10,000 by way of compensation for an injury.
In early 2004, the applicant commenced studying. As a consequence, he reduced his hours of employment. During the same period, the respondent returned to work, initially working one day per week. This later increased to four days per week by the middle of 2004.
In December 2004, the applicant completed building the house at M, NSW.
Between 2006 and the mid-2007, the applicant worked as a tradesman.
Between May 2007 and 1 August 2007, the applicant worked full-time as a government employee.
On 1 August 2007, the parties separated.
Sometime after 1 August 2007, the applicant traded in his Ford motor vehicle for approximately $3,000 and purchased a Toyota motor vehicle for $32,000.
On 8 August 2007, the respondent borrowed the sum of $5,000 from her father for the payment of legal fees.
On 24 August 2007, the respondent returned a diamond ring to the applicant. She retained an opal which had been given to her by the applicant.[18]
[18] Transcript of proceedings, 15 November 2010, 113.
On 21 November 2007, the respondent purchased a Subaru motor vehicle. The purchase of this vehicle was achieved from an insurance payout and from the borrowing of a sum of $3,490 from her brother. The respondent also asserted that she borrowed $2,510 from her brother for the payment of legal fees.
The respondent asserted, through her counsel’s aide-memoire analysing various bank records in evidence before me on 10 December 2010, that between the period 1 August 2007 and 30 September 2010 the applicant withdrew a total of $303,411.99 from portfolio loans secured against the property at K, ACT.
Financial statement of the applicant filed in the Supreme Court of the ACT on 2 July 2008
The respondent tendered in the proceedings a copy of the financial statement of the applicant filed on 2 July 2008 which was filed in the Supreme Court of the ACT.
The Financial Summary of the matters contained in that Statement is as follows:[19]
[19] Financial Statement of the applicant, filed in the Supreme Court of the ACT on 2 July 2008, Part B.
| Total average weekly income | E$340 |
| Total personal expenditure | E$796 |
| Total value of property owned | E$795,396 |
| Total gross value of superannuation | $32,835 + $239 pension fortnightly |
| Total liabilities | E$313,500 |
| Total financial resources | Nil |
The applicant deposed that the estimated value of the property at K, ACT was $400,000. He also identified that he had debt of $54,996 (against a St George Bank account number …) and $102,564 (against a St George Bank account number …). He also deposed to having a self‑managed investment estimated to be worth $300,000 (the applicant made a notation next to this value: “Note: Balance changes daily and has suffered significant decline in the past year due to stock market crash which is ongoing in a downward slide.”)[20]
[20] Ibid, Part I.
The applicant initially objected to the tender of this document. The applicant submitted that the document “was not created by a sane man” and had been produced by him when he was suffering from suicidal ideation, shortly after a suicide attempt.[21] He also stated that it was not relevant to the proceedings. Eventually, the applicant conceded as follows:[22]
HIS HONOUR: Just look at it, please?
[THE APPLICANT]: ---Yes, yes good. This doesn’t mean anything. Yes, of course, because it doesn’t mean – it won’t matter, whatever I say. All I am saying is what’s on there is what is. You can say I’m going to make money out of the trees, there’s $27,000, I think in the shares, which isn’t in there, because I was looking at – I was going to spend it actually. So I don’t know – you know that last page is what we should be working off because that’s what it is, that’s what this whole thing – I look at it and go, you are all dealing in big figures here but the big figures mean sell everything up and give [the respondent] money and see [the applicant] in the gutter.
[21] Transcript of proceedings, 10 December 2010, 190 – 193.
[22] Ibid, 193.
Financial statement of the respondent filed in the Family Court on
6 December 2010
On 6 December 2010, the respondent filed in the Family Court a Financial Statement. The Financial Summary of the matters contained in that Statement is as follows:[23]
[23] Financial statement, filed by the respondent, 6 December 2010, Part B.
| Total average weekly income | $1,265 |
| Total personal expenditure | $896 |
| Total value of property owned | $5,950 |
| Total gross value of superannuation | $204,325 |
| Total liabilities | $136,501 |
| Total financial resources | $0 |
In relation to the superannuation interests of the respondent, the respondent deposed to having a Superannuation interest with P Superannuation, which is a defined benefit superannuation scheme. The respondent deposed that the gross value of that interest was $55,674.94. An additional two superannuation interests were disclosed, in S Superannuation (gross value $143,879.54) and C Superannuation (gross value $16.00).[24]
[24] Ibid, Part J.
The respondent deposed that the Subaru Forester was worth $5,950.[25]
[25] Ibid, Part I.
The respondent has a liability of approximately $117,000 to her solicitors, KJB Law, as well as a liability to her father, of $5,000, and to her brother, P Marshman, of $6,000.[26]
[26] Ibid, Part K.
Affidavit of Mr M filed in the Family Court on
8 December 2010
Mr M, a Financial Planner employed by Finance Business 1, swore an affidavit as to matters relating to the respondent’s S Superannuation Plan interest as at 30 June 2010. Mr M deposed to the fact that the balance of the respondent’s superannuation interest was $143,879.54. Of this, $68,826.95 was preserved and $75,052.59 was unrestricted and non‑preserved.[27]
[27] Affidavit of Mr M, filed by the respondent, 8 December 2010, [3].
Mr M also stated relevantly stated:[28]
3. …if [the respondent] were to have withdrawn [the non-preserved
component], she would have been required to pay tax at the rate of 21.5% on the portion of those funds that were taxable.
4.As at 30 June 2010, $22,313.49 (or 15.5%) of [the respondent’s] total entitlement was tax free and $121,566.05 (or 84.5%) was taxable.
5.As 84.5% of [the respondent’s] total entitlement [S Superannuation] was taxable, if she were to have withdrawn the $75,052.59 which is unrestricted and non-preserved, she would have be required to pay tax on 84.5% of the $75,052.59, which is $64,169.96. Accordingly, [the respondent] would have had to pay tax of 21.5% on $64,169.96, 21.5% of $64,169.96 is $13,796.54.
[28] Ibid, [3] – [5].
Mr M was not cross-examined by the applicant.
Affidavit of the applicant – filed 12 November 2010
On 15 November 2010, I made a number of rulings that many parts of the applicant’s affidavit filed in the Family Court on12 November 2010 were inadmissible. A number of annexures were attached to the affidavit which I allowed the applicant to rely upon. Those annexures which are relevant to the issues before the Court are outlined below.
Annexure “C” was a copy of an Electronic Funds Transfer Remittance Advice from Business 2 to the applicant dated 8 September 1998. That Advice states that the sum of $53,804.43 was paid directly into the applicant’s bank account on 9 September 1998.
Annexure “D” was a Car Valuation from “[Business 3]”. It listed a “[…]” Toyota with a Average Private Price of $30,000 to $33,200 (against 80,000 to $120,000 average kilometres). A Trade in Price Guide was $24,900 - $28,100.
Annexure “E” was a letter from B Real Estate dated 15 February 2010. In that letter, the author, Ms S appraised the property at M at $280,000 to $305,000 (based on “recent comparable sales”).
Annexure “F” was a letter from Accounting firm 1 dated 18 February 2010. In that letter, the author stated the following:
…we have provided below an estimate based on the information provided by you [the applicant] of the capital gains tax payable on the disposal of your coast property.
Current market value $280,000
Less: Land & construction costs $100,000
Capital Gain $180,000
Assuming a marginal tax rate of 31.5% (including Medicare levy) will apply to the discounted gain of $90,000, capital gains tax of $28,350 would be payable on the capital gain of $180,000.
Annexure “G” was an Annual Statement from S Superannuation of the applicant. The withdrawal benefit at 30 June 2009 was $25,232.16.
Annexure “H” was a Response to the applicant’s request for information about the respondent’s S Superannuation interest. The value of the account balance at 9 November 2010 was $156,044.66. The preserved benefit component at 9 November 2010 was $80,992.07. The unrestricted non‑preserved benefit was $75,052.59. The tax free component was $22,313.49. The taxable component was $133,731.17. Counsel for the respondent indicated that the preserved benefit component was accepted as the correct figure which should be taken into account by the Court.[29]
[29] Transcript of proceedings, 10 December 2010, 135.
Annexure “J” was a table prepared by the applicant identifying the assets and liabilities of the parties. That information is set out hereunder:
| Assets | Value |
| [Property at K] | $480,000 |
| KCH[30] | $275,000 |
| [Toyota] Car (Redbook) | $20,000 |
| Superannuation | $25,232 |
| [S] Investment | $2,061 |
| ING Bank | $386 |
| Total | $802,660 |
| Liabilities | Value |
| Portfolio Loan 1 [Property at K] | $102,623 |
| Portfolio Loan 2 [Property at K] | $55,127 |
| Low Doc 1 KCH | $70,414 |
| Low Doc 2 KCH | $134,000 |
| Foreclosure on loans early | $4,000 is all are |
| Real estate fees [Property at K] | $20,000 if sold |
| Real estate fees KCH | $12,000 if sold |
| Solistors Fees [Property at K] | $700 |
| Solistors Fees KCH | $700 |
| Capital Gains Shares | $19,500 regardless |
| Capital Gains KCH | $28,500 regardless |
| Ruptured H.W.S[31] [Property at K] | $1,400 regardless |
| Total | $448,814 |
| Total asset Pool | $353,846 |
[30] I surmise this stands for “[K, the child’s] Coast House” being the property at M. A similar reference was made by the applicant throughout the proceedings on 10 December 2010.
[31] I surmise this is to do with a hot water system breaking down and subsequently being repaired in the property at K, ACT. The applicant made oblique reference to this on 10 December 2010: Transcript of proceedings, 10 December 2010, 192.
The following notations appeared underneath the above information in the annexure:
“Note:
1: Owned [property at K] house unencumbered 3-4 yearsa prior to meeting [the respondent]. From cashing in my $53,508.00 superannuation.
2: Owned KCH land unencumbered from sale of [property at Q] flat $34,000 prior to [the respondent] moving into [property at K].
3: Fully financed the building of KCH with money saved prior to ever meeting [the respondent] and hand built most of KCH without [the respondent’s] input financially or physically. I tried to involve her
4: Owned Honda motorbike unencumbered 10 years before I met [the respondent] (now worthless)
5: All sharemarket (except [the respondent’s] $87,000.00) financed by me through my own finances mostly from gearing [property at K] house were established prior to meeting [the respondent]
6: Caveates on house leaves me in unvialble position to manage debt as I was unable to clear debt early during the GFC and had to watch as the market fell and fell and fell again. Destroyed me.
7: I basically have to manage on borrowed money because of the way [the respondent’s solicitor] does her job :-(
8. Mental breakdown, physical incapacitation and your destruction of my career has ruined me.
9. You take KCH inheritance and I will lose it guaranteed. Its all I am clinging to.”
Affidavit of Mr L filed in the Supreme Court of the ACT
on 10 March 2009
Mr L, a valuer of R Real Estate, affirmed an affidavit filed 10 March 2009 in the Supreme Court. Mr L opined that:
5.…the [property at K, ACT] was worth between $235,000.00 and $245,000 as at 1 May 2002 and between $440,000.00 and $460,000.00 as at 17 February 2009.
Mr L’s critical assumptions underlying the appraisal were that he was unable to properly inspect the property and was only able to undertake an external assessment.
Before summarising the assets and liabilities of the parties to be adjusted in accordance with the DR Act, there are three further matters to which I should turn my attention.
Affidavit of Ms P filed in the Supreme Court of the ACT on 29 January 2009
I should also make brief mention of the affidavit of Ms P filed in the Supreme Court of the ACT filed 29 January 2009 relied on by the respondent. The affidavit was intended to indicate that the bulk of the home‑making and parenting work was undertaken by the respondent. I have made findings in relation to this matter below which are broadly consistent with the evidence of Ms P. However, her evidence is only quite limited in time and represents, at best, a series of snapshots from different periods about the nature of the parenting of the two parties on the occasions that she observed it. It is, to some extent, corroborative of the evidence of the respondent. Really, I do not place much weight on it in my overall determination of the contributions of the parties.
Discussion
The limits of jurisdiction under the Domestic Relationships Act 1994 (ACT)
The DR Act, unlike the provisions of Part VIIIAB of the Family Law Act 1975 (Cth) (proceedings in relation to de facto financial causes), is an Act of the ACT Legislative Assembly which necessarily carries with it the territorial limitations of jurisdiction associated with legislation of the ACT.
In this matter, there are two pieces of real property which belong to the parties and are, at least potentially, the subject of adjustment. I received no submissions from counsel for the respondent (Ms Godstchalk) as to how I might make an order in rem about the property at M, NSW.
In my opinion, I am unable to make an order directly affecting that property, but I am entitled to take it into account as a financial resource (a substantial resource) in the hands of the applicant. What I am able to do is to adjust the property of the parties in the ACT, taking into account the property owned by the applicant in NSW.[32]
[32] This is a similar situation to that which pertained in Aldridge & Mazzotti [2009] FamCA 1048.
This determination will also affect the nature of some of the contributions which the applicant asserts that he has made as a number of these have been directed to and found their way into the property at M, NSW.
Superannuation interests
Unlike the provisions of the Family Law Act 1975 (Cth) relating to the division of the property of marriage or (Part VIIIAB) de facto relationships, the DR Act does not provide for any splitting of superannuation entitlements. It is only in circumstances where the superannuation can properly be categorised as “property” that an order might be made directly affecting that superannuation.
It is, of course, a financial resource which can be properly taken into account, affecting the exercise of my discretion pursuant to s 19(2) of the DR Act. The applicant regarded this as anomalous and unjust. It is a consequence of the parties proceeding under the DR Act rather than consenting to proceedings under Part VIIIAB of the Family Law Act 1975 (Cth).
The respondent’s superannuation entitlements might be summarised as follows:
a.A defined benefit superannuation entitlement with P Superannuation declared to have a gross value of $55,674.94; and
b.An entitlement at 9 November 2010 with S Superannuation to the value of $156,044.66 (see paragraph 67 above). The preserved benefit component was $80,992.07. The unrestricted non‑preserved benefit was $75,052.59. The tax free component was $22,313.49. The taxable component was $133,731.17
As stated above in paragraph 59, Mr M gave evidence that the respondent would pay the sum of $13,796.54 in tax if the unrestricted non-preserved benefit of $75,052.59 was paid to the respondent.
In Wunderwald & Wunderwald,[33] the Full Court of the Family Court of Australia (Nicholson CJ, Strauss & Cohen JJ) held as follows (at 79,361):
In a case where parties can clearly put themselves in a position of obtaining their entitlements to a superannuation fund, without suffering any detriment, such as the loss of the opportunity to continue with their career and in a case, such as this one, where the trustee of the superannuation fund is clearly the creature of the parties or one of them, it seems to us to be quite unreal to treat such an entitlement as other than property which is available for distribution pursuant to s 79. In such a case it seems to us that the distinction between “property” and a “financial resource” us a distinction without a difference.
[33] Wunderwald & Wunderwald (1992) FLC 92-315, 79,361.
In the matter before me, there is no suggestion that S Superannuation[34] was the alter ego of the respondent and no submission was made to that effect by the applicant. In such circumstances, even if there were some immediate availability of the funds, in my opinion, there is no authority even analogously under the Family Law Act 1975 (Cth) prior to the amendments to that Act which permitted superannuation splitting (Part VIIIB of that Act now refers),[35] to justify adjustment of the superannuation or the requirement that superannuation should be treated as property for the purposes of the DR Act.
[34] [34] N Limited ABN … is the operator of S Superannuation. The Trustee is O Superannuation Pty Ltd ABN … .
[35] In Coghlan & Coghlan (2005) FLC 93-220, it was noted in the Judgment of the majority of the Full Court of the Family Court of Australia (Bryant CJ, Finn & Coleman JJ) that (at 79,640): “…[i]t was generally accepted prior to the introduction of Part VIIIB that courts exercising jurisdiction under the Act lacked the jurisdiction or power to make orders which would divide, or otherwise directly affect interests in most superannuation schemes in this country.”
The potential availability of funds prior to a retirement age may, in such circumstances, constitute an aspect of the superannuation entitlement which makes it more immediately available, in much the same way as the applicant’s existing entitlement to a P Superannuation pension makes that more valuable for him. I do not, however, propose to deal with either the applicant’s presently paid pension or the respondent’s superannuation as property for the purposes of my determination under the DR Act.
I should indicate for completeness that in addition to the two forms of superannuation referred to above, the respondent had a very small C Superannuation – $16. It is de minimis and I disregard it.
For his part, the applicant is in receipt of a P Superannuation pension of approximately $120 per week,[36] as well as a superannuation entitlement as at 30 June 2010 with S Superannuation of $28,416.28.[37]
[36] Exhibit “DFW14”.
[37] Exhibit “DFW1”, Tab 1.
I also note that the applicant from time-to-time made reference to the property at M, NSW as being his superannuation.[38] This, however, alternated with his reference as “[the child’s] coast house”. He asserted that he had cashed in some superannuation valued at about $53,580 which found its way apparently either into the assets of the parties or the development of the property at M, NSW. Unquestionably, in such circumstances, the financial resource in the applicant’s hands will have been enhanced by his contributions, but his construction of the property at M, NSW and/or the money that went into it from pre-relationship funds must necessarily diminish the contribution that the applicant can claim he made in relation to the assets of the parties or the diminution of their liabilities. As with other aspects of the applicant’s evidence it is difficult to ascertain precisely where funds have gone or what they were used for. It fell to him to satisfy me about these matters. It is not the task of a trial Judge in family law to conduct some sort of forensic investigation akin to an audit or an equitable tracing exercise unaided by either evidence or submissions (for example, an aide memoire) from either or both of the parties.
[38] Transcript of proceedings, 10 December 2010, 137.
Add-backs
The other matter that needs attention prior to my assessing the contributions of the parties and the other matters that I am obliged to consider is the issue raised by the respondent that there should be a substantial add-back
There is a sum of $274,411.99 claimed by the respondent as an add-back. In support of her contention, Ms Godstchalk produced a carefully considered and sourced spreadsheet as an aide-memoire or a “golden thread” for finding the judicial way through the complicated transactions of the parties (particularly of the applicant) in relation to funds into various accounts and as to share purchases. The effect of the aide-memoire (as supported by the evidence both written and oral of the parties) is that in the period immediately prior to separation (being 1 August 2007) the applicant withdrew the sum of $100,000 on 1 March 2007 from his S Investment, and a further sum of $160,710 from the same source on 26 July 2007.
These two asserted withdrawals are supported by my examination of Exhibit “DFW16” adduced by the respondent. This was a review report from S Investment for an interest in the name of the applicant for the period 1 July 2006 to 30 June 2008. The following salient information is recorded:
a.The opening balance at 1 July 2006 was $232,994.34;
b.There were no contributions (or other additions) during the statement period;
c.The total deductions during that period were $262,412.05 – the majority of this sum was constituted by withdrawals ($260,710); the remainder fees ($3,702.05);
d.The withdrawals during that period were a benefit payment on 1 March 2007 of $100,000 and a benefit payment on 26 July 2007 of $160,710;
e.The total investment earnings from income/distributions and changes in market value was $33,391.80; and
f.The closing balance at 30 June 2008 was $1,974.09.
I also make the following observations of some of the other exhibits. Exhibit “DFW17” adduced by the respondent was a statement of the Portfolio loan with St George Bank held by the applicant for the period 1 March 2007 to 31 March 2007 (Account number: …). The following salient information is recorded:
a.At 1 March 2007, the opening balance was $4,595.81 (credit);
b.On 1 March 2007, there was a deposit of $100,000 with the description “[N Ltd][39] – Termination/Drawdo”. The balance of the account thereafter was $104,595.81 (credit); and
c.At 31 March 2007, the closing balance was $106,472.71 (credit).
[39] N Ltd ABN … is the operator of the S Superannuation. The Trustee is O Superannuation Pty Ltd ABN ….
The first part of Exhibit “DFW18” adduced by the respondent was the updating review report from S Investment for the applicant’s interest for the period 1 July 2008 to 10 July 2010. That showed that the closing balance at 10 February 2010 at $2,023.07. The second part of Exhibit “DFW18” was a statement of the Portfolio loan with St George Bank held by the applicant for the period 1 July 2007 to 31 July 2007 (Account number: …). The following salient information is recorded:
a.At 1 July 2007, the opening balance was -$32,895.88 (debit);
b.On 27 July 2007, there was a deposit of $160,710 with the description “[N Ltd] – Termination/Drawdo”. The balance of the account thereafter was $129,891.74 (credit); and
c.At 31 July 2007, the closing balance was $129,364.58 (credit).
Exhibit “DFW19” adduced by the respondent was a statement from St George Bank “directshares” which outlined Mr Dockland’s shareholdings as at 30 June 2008. Those holdings totalled $305,794.43.
The two sums of $100,000 and $160,710 were variously applied by the applicant towards the purchase of shares, the discharge of debts of the applicant in relation to his MasterCard and so far as I am able to ascertain shuffled from time-to-time from one account to another. During the period both before and after separation, shares were bought and sold by the applicant. I note that the submission of the respondent is that the total proceeds of the sale of shares from separation until September 2010 were in the order of $212,983.50. In addition, there were some $32,000 similarly deposited in the applicant’s working account (St George Bank Account number …) before separation.
There had been an expenditure of $58,832.79 in the purchase of shares after separation. Prior to separation, there would appear to have been a purchase of about $184,659.12 worth of shares.
In a further aide memoire, which became Exhibit “DFW20”, Ms Godstchalk set out an analysis of a combination of source material of the applicant’s shareholdings and a document which outlined that the number of shares the applicant held (ascertained from the subpoenaed material – Tender Bundle 27, 28, 29A & 30 refers), as well as the ASX pricing index at 11 November 2010 for each of those share types. The total value of the applicant’s shareholding as at 11 November 2010 was $143,170.74. This is as good and as indicative a value of the shareholdings as may be for the purposes of these proceedings, given the fluctuations and share prices from day-to-day. It is not, however, a precise and professional valuation, but none was offered by the applicant. Accordingly, I propose to accept that value for the purposes of my determination.
I have carefully analysed the bank accounts that were operated by the applicant for the relevant periods in relation to which the add-back is claimed. I am satisfied that the representations contained in the aide-memoire accurately represent the disposition of the funds. In particular, I am satisfied that a sum of $274,411.99 is mathematically calculable as a sum not otherwise represented on the spreadsheet or for that matter in the parties’ balance sheet.
The applicant himself has given two diverse explanations for this apparent discrepancy. He has maintained in one account in what may have been intended as being some form of sarcastic humour that some money (the precise never specified) was expended on alcohol, prostitutes and drugs.[40] The second explanation contained in part in his Financial Statement filed in the Supreme Court of the ACT on 2 July 2008: “Note: Balance changes daily and has suffered significant decline in the past year due to stock market crash which is ongoing in a downward slide.”)[41] Again, he made reference in his affidavit filed in the Family Court on 12 November 2010 in the Notation in Annexure “J”:
6: Caveates on house leaves me in unvialble position to manage debt as I was unable to clear debt early during the GFC and had to watch as the market fell and fell and fell again. Destroyed me.
[40] Transcript of proceedings, 10 December 2010, 197 to 207.
[41] Ibid, Part I.
It therefore appears that the applicant asserts that, to the extent that the discrepancy exists and he does not in any way attempt to explain or deny it, it is explicable by movement in the stock market and his expenditure on alcohol, prostitutes and drugs.
For some years, the Family Court has examined and determined situations in which one or both of the parties have prior to the Court hearing applied some of the funds which would otherwise have been the subject of division for purposes principally relating to the person who applied such funds. It is part of the prescription of justice and equity that a party should not be able to derive advantage for herself or himself by effectively pre-empting the division of property in her or his favour or prematurely appropriating some of such funds prior to a Court determination (and almost invariably without the consent of the other party).
One typical application of such funds is in payment of legal fees. The injustice of allowing one party to fund his fees from the joint property of the parties but not the other is obvious.
Otherwise, a party may effectively appropriate to him or herself some of the funds which might subsequently have become his or her share as a result of Court action or by agreement. Again, this should properly be “added-back” into the property pool. It is, however, more confusing when the expenditure of funds is in the nature of what lawyers refer to as “waste”[42] or the funds are expended on normal day-to-day living expenses, which are in their own terms, “reasonable”.
[42] See Kowaliw & Kowaliw (1981) FLC 91-092.
In Hackshaw & Hackshaw,[43] his Honour, Murphy J relevantly stated as follows (with reference to an earlier Judgment of his Honour, Kouper v Kouper (No. 3) [2009] FamCA 1080):
[43] Hackshaw & Hackshaw [2010] FamCA 1123.
84. …
108.Whilst, clearly enough, the authorities make it plain that the manner in which any dissipation of funds should be dealt with is a matter for the trial judge’s discretion, and accepting that the discretion ought not, of course, be fettered, it nevertheless seems to me that (leaving aside the issue of paid legal fees) the authorities indicate that the issue can, conveniently, be approached by reference to five questions:
a. Is it contended that property (including money), that would otherwise be available for distribution between the parties if a s 79 order is made, has been dissipated with a consequential loss to the property otherwise potentially divisible between the parties at the date of trial?;
b. If so, is it alleged that the dissipation of property was in respect of things other than what, in the particular circumstances of this particular marriage, can be classified as “reasonable living expenses”?;
c. If it is asserted that any loss to the divisible property results from dissipation of property other than in respect of such expenses, why is it asserted that the result should be a sharing of that loss by the parties other than equally?
d. If it is contended that this be the result, why should there be an add back (which brings to account, dollar for dollar, such past expenditure in current dollars) as distinct, for example, from there being an adjustment being made pursuant to s 75(2)(o)?; and
e. How should either any “add back”, or adjustment pursuant to s 75(2)(o), be quantified?
With respect to his Honour, I adopt his summary of the position and of the decisions that a trial Judge might properly make in circumstances where it has been asserted that there has been a dissipation of funds.
Adopting the approach taken by Murphy J set out above (and applying it analogously under the DR Act), in relation to the asserted dissipation of funds in this matter. It is contended that money that was otherwise available for distribution has been dissipated with the consequential loss to the property which would otherwise be available for adjustment between the parties;
The dissipation of property would need to be classified as “reasonable living expenses” if the second stage (statement (b) above of Murphy J’s approach) were to be satisfactorily completed by the respondent. Without evidence that excessive consumption of alcohol, the use of prostitutes and drug use were part of the every day living experiences and expenses of the parties during the period they were together, I would not be prepared to hold such expenses were “normal living expenses”. There is no evidence about those matters. In any event, even if they were part of the “normal” expenses during the course of the relationship, I am satisfied that in my discretion (the discretion referred to by the Full Court of the Family Court of Australia in Chorn & Hopkins,[44] and by Murphy J (above), it would be reasonable to exclude such expenditure.
[44] Chorn & Hopkins (2004) FLC 93-204.
On the other hand if the applicant engaged in share trading which, in turn, had generated a profit rather than a loss it is likely that the respondent would seek to claim a share of that profit. Equally, the bad must be borne with the good. The lack of skill or perhaps more accurately the intervention of global forces beyond the applicant’s control in such circumstances cannot be reasonably said to require inclusion notionally in the asset pool to do justice and equity. If there were some evidence that the applicant engaged in highly speculative endeavours or, for example, put a bet on a horse at a race-course, it would perhaps be a proper exercise of discretion to add-back the money lost. It is not asserted that either of those things happened other than as suggested above in the explanation of the dissipation of funds by the applicant himself in his evidence of 10 December 2010.
It was open to the applicant to adduce evidence in a believable form as to what he spent the money on. It was open to him as a person who engaged over quite a long period in quite extensive share trading to demonstrate the effect of the Global Financial Crisis on his share holdings. It was open to him to quantify the extent to which he expended money on alcohol, prostitutes and drugs. He did none of these things.
The respondent has, in effect, drawn attention to the discrepancy, calculated it as best she might by reference to the shares held at separation (or at trial), the money expended, proceeds of share sales and bank account balances. She sought that the applicant explain what it was that he had done. No explanation was forthcoming.
It cannot that one party who has the ability to demonstrate what happened to dissipated funds but who is either unable or unwilling to do so should be able to be relieved of the consequences of the expenditure of money which would otherwise have been available for division. In this case, it may well be that because investments failed as a result of the Global Financial Crisis the loss thereby occasioned should be borne equally by the parties (see Murphy J’s statement (c) above). However, while it might be reasonably inferred that was the consequence which brought about at least part of the loss, it is not open to the respondent to demonstrate this conclusively, or even on the balance of probabilities, except by asking the Court to draw such an inference that a failure to explain such a discrepancy is tantamount to an admission that the funds were not expended on losses which should be borne equally.
His Honour, Murphy J, perspicaciously in his statement (d) (above) moves to the proposition that if there should be an add-back, why should it be on a dollar-for-dollar basis as distinct from “…there being an adjustment being made pursuant to s 75(2)(o)” (s 15(1)(e) of the DR Act is to a similar effect).
His Honour went on in statement (e) (above): “How should either any “add back”, or adjustment pursuant to s 75(2)(o), be quantified?”
In this matter, it is likely that some parts of the funds unexplained in question was expended on something other than reasonable living expenses. It is also reasonable to conclude that so far as there was a co-incidence of the diminution of the value of the shares and the Global Financial Crisis that part of the loss in their value may be attributable to the World’s economic circumstances. I cannot on the evidence before me make a decision clearly about the amounts that might clearly fall into either category if they fall into any. However, it seems to me that in the circumstances I have analysed above this sum of money is properly a sum to be taken into account under s 15(1)(e) of the DR Act. Moreover, given that it was within the power of the applicant to demonstrate what the funds were expended on and he failed to do so it is reasonable that it should receive significant weight as a factor to be taken into account s 15(1)(e) of the DR Act.
I shall ascribe a quantification pursuant to s 19(2) of the DR Act in due course.
The value of the property at K, ACT
Finally, although again the applicant’s approach to the property at K, ACT varied during the course of the proceedings, from a desire to retain it to a resignation to its sale, in the end there was agreement between both parties that the property at K, ACT should be sold. As a consequence, determining its value precisely is irrelevant to the orders that I propose to make. Nevertheless, establishing an indicative value for the purposes of my Reasons for Judgment is desirable if not necessary so that a calculation may be made about the effect of, and the consequences from, the contributions each of the parties has made and the effect of the financial resources and other factors that each of them has relevantly pursuant to s 19(2) of the DR Act to my determination about what would be a just and equitable adjustment of their property interests.
Mr L identified (see paragraph 70 above) that the property at K, ACT was worth between $235,000 and $245,000 as at 1 May 2002 and between $440,000 and $460,000 as at 17 February 2009.
The applicant conceded in his Annexure “J” to his affidavit filed in the Family Court of 12 November 2010 (see paragraph 68above) that the property at K, ACT was worth $480,000. It would be reasonable to take that figure as an indicative, but not properly constituted, valuation given the range put forward by the respondent ($480,000 and $520,000). In the light of my determinations hereafter, I would propose that the sale of the property at K, ACT should be a matter conducted exclusively by the respondent. The distribution of the proceeds would depend in part upon the amount by which, if at all, the sale proceeds of the property exceeded the sum of $480,000.
Finally, the applicant rejected that loans were made to the respondent by her father and brother. He offers nothing but his opinion in support of this submission. The evidence of the respondent was appropriately formal.[45] I accept that evidence.
[45] Transcript of proceedings, 15 November 2010, 107 – 108.
Assets & Liabilities
I find the property and financial resources of the parties is as follows (rounded up to the next dollar):
| Item | Value |
| Property at K, ACT | $480,000 |
| Shares (Applicant) | $143,171 |
| Total Liabilities | |
| St George Low Doc Portfolio Loan Account ….(secured against the property at M, NSW) | $70,414 |
| St George Low Doc Portfolio Loan Account …. (secured against the property at K, ACT) | $102,650 |
| St George Low Doc Portfolio Loan Account ….(secured against the property at K, ACT) | $51,601 |
| Respondent’s debt to brother | $3,490 |
| Respondent’s legal costs[46] | $129, 011 |
| Financial Resources | |
| Superannuation (Respondent) | $156,045 |
| Superannuation (Applicant) | $28,416 |
| Property at M, NSW | $275,000 to $300,000 (see Annexure “F” to the applicant’s affidavit, paragraph 65 above – $280,000 is an admission against interests by the applicant. As I cannot order the sale, I do not take account of any prospective Capital Gains Tax liability). |
[46] This includes the debts owed to her father and brother.
I accept that the applicant has the diamond ring, the respondent has the opal.[47] Without any proper valuations, it is impossible to evaluate the equivalence of those two items. For the purposes of my determination, I disregard both items. I do so similarly for the parties’ vehicles and the applicant’s Honda Motor Bike.
[47] Transcript of proceedings, 15 November 2010, 113.
The applicant has the capacity to draw down the sum of $134,000 on the line of credit attached to the property at M, NSW. This is clearly not a debt at this point, but represents a basis upon which the applicant could obtain money if, in fact, he wished to do so. I have no particular information about this facility, but I take it into account generally as being an advantage to the husband. Further, he has a credit card valued at $30,000 which I will treat in a similar way.
The respondent’s possible access to the unrestricted superannuation entitlement is a factor in her favour, as is the fact that the applicant is being paid a pension and has been paid for some time. These are factors which, at the very least, must cancel the other out, if not operate in the respondent’s favour in the overall adjustment.
Contributions
After consideration of the matters that have been discussed previously, the issues about contribution have become somewhat clearer. Prior to the commencement of the relationship, the respondent owned the property at E, ACT which was sold at or about the time that co-habitation commenced. I am satisfied that the proceeds of sale of that property was $149,104.14 (including the balance of deposit after payments of real estate agent’s commission). Some $28,600 of that sum was expended on the purchase of her car. This car has been excluded from the pool of assets. It is asserted that she also had $4,000 worth of savings. I accept that that is so.
The respondent had an entitlement to superannuation of some $100,736.43.[48] This sum has been rolled over into S Superannuation to which reference was made previously as a financial resource. Perhaps the significance of her owning it prior to the relationship is that her superannuation as a financial resource has been largely generated from pre-relationship effort.
[48] Exhibit “DFW22”.
I accept that the respondent also had an entitlement to C Superannuation of about $8,507.40 at 1 July 2001,[49] which again was rolled over into S Superannuation. This is again substantially a pre-relationship effort on her part.
[49] Ibid.
I do not propose to take into account furniture and other chattels into the pool. Although there were some and the parties are in dispute their value, it is not really a relevant part of my determination about contributions. It is enough that she had some additional chattels.
The applicant owned the property at K, ACT, which is the principal asset of the parties at the present point. It was subject to a line of credit of $158,000. It is not absolutely clear that the property was unencumbered at the time of the commencement of the relationship in May 2002. Certainly, the claim from the applicant is that it was. It seems to me to be more likely than not.[50]
[50] See Defence of the applicant, filed in the Supreme Court of the ACT, 20 June 2008, [1].
In addition, the applicant owned a Flat in Q, NSW. This was sold for $33,000. I am satisfied on the evidence that this amount made its way into the purchase of the property at M, NSW as the price of the purchase of the land. A further $110,000 from some source (I believe a draw down against the property at K, ACT) was likely to have found its way into the property at M, NSW. To some extent, where this money came from is irrelevant, although it does effect ultimately the encumbrance on the property at K, ACT.
The applicant’s Ford motor vehicle and Honda motor bike owned are not being taken into account. At the commencement of the relationship, the applicant was and is still receiving a P Superannuation pension of about $120 per week.
In 2003, the applicant received a compensation payment of $10,000.
In assessing the value of those initial contributions, several factors might properly be taken into account. The first is that the applicant deposited $111,000 into the respondent’s bank account between August 2002 and January 2003. This was at the beginning of the relationship. It is that amount which I am satisfied on the inspection of the Exhibits (both the ING Accounts and St George Bank accounts of the respondent)[51] was largely expended in the construction of the property at M, NSW. This accords with the evidence in Annexure “F” of the applicant’s affidavit of 12 November 2010 (see paragraph 65 above), which suggested that the land and construction costs of the property at M, NSW were $100,000. That is a figure that the accountant could only have obtained from the applicant himself. It also accords with the (interjected) commentary given by the applicant during the course of the respondent’s examination‑in‑chief on 15 November 2010.[52]
[51] Exhibit “DFW1”.
[52] Transcript of proceedings, 15 November 2010, 78 to 84.
It seems, therefore, that the most likely scenario is that the savings that the applicant had at the time of separation were redirected through the respondent’s accounts to the property at M, NSW. They therefore had two characteristics. The first is that they were pre-relationship. The second is that they have not formed any part of the development of the assets of the parties available for adjustment but fed in essence into the financial resource which will be retained by the applicant.
The applicant’s subsequent drawing down against the line of credit on the property at K, ACT (which in large measure still exists) is not properly in any way to be regarded in any way as a contribution by him. However, shares that were derived therefrom have been considered separately. This discrete point has been part of my consideration in relation to the add-back.
The evidence about the value of the property at K, ACT at the time of the commencement of the relationship is unsatisfactory (see paragraphs 70 and 71 above). Mr L’s opinion of $235,000 to $245,000 was conducted on a “drive-past” valuation. While it may be the best available appraisal, it is scarcely of much assistance. In particular, it is not of any assistance to the applicant in establishing what his contribution actually was. Accordingly, his contribution might be properly put at its highest at about $245,000 for the property at K, ACT at the time of cohabitation in May 2002. Given that, the other funds for the Flat in Q, NSW and his savings were redirected to the property at M, NSW.
The best comparison I can make therefore is between about $153,000 on the part of the respondent and $245,000 on the part of the applicant. Accordingly, there is a disparity in initial contributions in favour of the applicant which needs to be recognised in some way.
I accept the submissions of Ms Godstchalk on behalf of the respondent that, apart from two years following the birth of the parties’ child, the respondent was employed at all times on average at about $41,000 per year. In contrast, the applicant was employed for only two years of the relationship earning on average $43,000 per year. Otherwise, his income was on an average of $20,000. It has to be acknowledged that in addition he received a pension and the compensation payment as discussed above.
A part of the applicant’s time was spent in building the property at M, NSW. This is a matter of dispute between the parties. I find that it is more likely than not that he spent not less than the six months that he indicated that he spent building it, and probably not the entire 18 months that was asserted by the respondent. In her submissions, Ms Godstchalk outlined in some details the times that he spent in construction of that property. In general terms, she is more likely to be correct than the applicant contends. While the applicant was building that property he could not contribute as a homemaker and parent. In particular, he could not have done so when the property remains with him, will remain with him and is but a financial resource in the overall proceedings.
Under the DR Act, the applicant’s development of the financial resource is a factor that can be taken into account (pursuant to s 15(1)(b) of the DR Act). The applicant is entitled to ask me to take that factor into account. Nevertheless, it bears upon the value and the weight to be given to the financial recourse in his hands rather than anything else. Accordingly, during the course of the relationship, it is reasonable to assess that, in particular, in relation to the acquisition and preservation of assets (leaving aside the share dealings) a greater financial contribution and homemaker and parenting contribution was made by the respondent.
However, also during this period, the applicant was working on some share transfers. This process accelerated at about the time of separation (in August 2007). This share dealing has been somewhat disastrous in the end as is illustrated by the findings about the assets set out above. It is clear that the respondent contributed significantly to accounts with Finance Business 1.
Notwithstanding the submission made on behalf of the respondent that the contributions during the period of cohabitation should be assessed as to 45 per cent to the respondent and 55 per cent to the applicant, in my opinion, the appropriate way of assessing the contributions is to favour the respondent as to 57 per cent as against the applicant 43 per cent. The difference in approach in this matter is generated by the fact that the respondent sought to include (wrongly in my opinion) the property at M, NSW in the pool of assets.
After separation, 100 per cent of the parenting contributions have been made by the respondent. She has had little, if any, contribution from the applicant for the financial care of the child. She has continued to make some contributions to her superannuation. I accept that during this period, although this is more relevantly a factor under s 19(2) of the DR Act, the applicant has had sole use of both properties. The outgoings have been paid out of money that was accumulated during the relationship.
Overall, in terms of contributions to the assets in the pool, taking account of the discrepancies in the three phases of contributions, the respondent should be regarded as having contributed as to 67 per cent and the applicant as to 33 per cent.
Turning to s 19(2) of the DR Act, there is no doubt that there is a discrepancy of the income earning capacity of the parties. The respondent continues to work as a part-time public servant and to earn an income of just under $60,000 per year. For all practical purposes, it would appear that the applicant is unemployable. He does, however, continue to receive his P Superannuation pension of $120 per week.
The respondent continues to have the parenting responsibility for the child. Notwithstanding the reservations expressed by the Full Court in Warnold & Bleachamp (above) and by the Full Court (Lindenmayer, Finn and Warnick JJ) in Hallinan v Witynski (1999) DFC 92-219 at paragraph 60 (also referred to above), that their needs to be a financial component to such care, in my opinion, it is properly a matter that I can take into account pursuant to s 15(1)(e) of the DR Act. In doing so, I am careful not to double count that as against the contribution and continuing contribution made by the respondent which has existed from separation to the present time and will continue for some years into the future (about 10 years).
The superannuation entitlements are a financial resource and they substantially favour the respondent when compared with the superannuation entitlements of the applicant. Nevertheless, each of those items needs to be evaluated in a slightly different way. For example, I indicated previously that the respondent’s superannuation had a component which appears to be more readily available than upon her retirement. This makes that more valuable as far as she is concerned. On the other hand, the applicant has the advantage of being paid a pension which is (and has been paid) at present, and will continue into the future (presumably with some indexation). That make his superannuation more valuable.
In addition, the applicant has been self-represented during the proceedings. The way in which he conducted the proceedings (which I have commented on before) has partly contributed to the protracted nature of the proceedings. It has also resulted in the incurring of additional legal fees and costs by the respondent. In this regard, I take account of the nearly $130,000 outstanding on behalf of the respondent as a debt in her hands. This is a factor which operates significantly to offset some of the other elements I have mentioned which might have been thought to have favoured the applicant.
Unaccounted for funds
In the course of my Judgment, I indicated that I would treat this as a factor under s 15(1)(e) of the DR Act. This is a factor which must operate substantially in favour of the respondent. Making the findings that I have about these funds and noting at least in part these funds were expended which clearly had no bearing upon the joint assets of the parties and which were easily and properly identified as a pre-emptive distribution of these funds by the applicant to himself, it seems to me that this justifies a substantial adjustment overall in favour of the respondent.
Property at M, NSW
Finally, I previously indicated that I would take account of the property at M, NSW as a financial resource. I note, in this regard, as a result of the findings I have made previously the finance for the purchase of that land and for the construction of the house and the labour associated with it have been substantially provided by the applicant. Nevertheless, it represents a significant financial resource in his possession and control. It is an item of real property to which he has a strong emotional connexion.
Conclusion as to contributions of the parties
In my opinion, the combined effect of the various factors to which I have referred leads, not by any process of mathematical calculation, but by “intuitive synthesis” to the proposition that there should be a further adjustment in favour of the respondent so that she receives 80 per cent of the asset pool and the applicant 20 per cent.
Practical Effect of Proposed Orders
This means, in effect, based on my findings, that the total of the net assets is:
a. the property at K, ACT valued at $480,000 (indicative value only) (asset); plus
b. the shareholdings of $143,171 in the applicant’s name (asset); less
c. the $102,650 secured against the property at K, ACT (liability); and less
d. the $51,601 secured against the property at K, ACT (liability).
Total = $468,920
I round this total figure to $469,000.
This means that from the asset pool, the respondent should receive the sum of $375,200 and the applicant should receive the sum of $93,800.
The net value of the property at K, ACT will be approximately $325,749 ($480,000 less $102,650 less $51,601). The shortfall of the respondent’s share of the property would be $49,451 ($375,200 less $325,749). But the applicant has $143,171 in shareholdings. From that, he is able to make up the amount due to the respondent of $49,451 and I will make an order to effect this.
This means that, in essence, the whole of the proceeds of the property at K, ACT should go to the respondent. She should have the carriage of the sale of that property. The applicant should be obliged to vacate it immediately.
If the property should bring on sale more than the $480,000 which has been taken into account, an adjustment will be made so that the applicant receives a proportion with the percentages set out above of the surplus (i.e. 20 per cent). This will have to be, however, offset against his obligation to make up the sum of the shares in his possession.
I note that if the applicant has either disposed of or is unable immediately to realise the value of the shares, he has a line of credit of $134,000 secured against the property at M, NSW, as well as his $30,000 credit card.
Further written submissions after Judgment reserved
Out of time, the applicant sent a letter decorated with a drawing in caricature of a person being hanged which I accepted as written submissions (filed 19 January 2011). I provided a copy to the respondent’s solicitors. Mr Moore, on behalf of the respondent, consented to my reading of the letter as submissions in reply (correspondence filed 24 February 2011).
Subsequently, the respondent’s solicitors provided an Amended Minute of Orders sought (which appears as Annexure 2).
In the submissions made by the applicant, a number of matters were raised. Some of these have been the subject of my determination already. To the extent that some others have not, I make the following comments.
I do not accept the values for the diamond ring and the opal as previously referred to. However, given my finding that the applicant has the diamond ring, if I were to do so it would generate a discrepancy in favour of the respondent.
There is no evidence about any other jewellery or wine in the possession of the respondent. I do not accept the applicant’s submission on this point. Nor is there any basis for this submission on the evidence.
The applicant rejects that loans were made to the respondent by her father and brother. He offers nothing but his opinion in support of this submission. The evidence of the respondent was appropriately formal.[53] I accept that evidence.
[53] Transcript of proceedings, 15 November 2010, 107 – 108.
The applicant did state that the respondent should receive the entire proceeds of the sale of the property at K, ACT less the cost of the debts secured against that property. The result I have arrived at is, curiously for reasons vastly different from any advanced by the applicant, not all that different in effect. In a Post-Script, the applicant sought that Ms Keogh as solicitor for the respondent have carriage and arrange of the property at K, ACT. He required that it be listed for $520,000. The orders I make provide for the house to be sold by the respondent (with such professional help as she requires). I do not require that it be listed at the figure nominated by the applicant.
Conclusion
On balance, having regard to the relevant factors in s 15(1) and s 19(2) of the DR Act, I consider that the orders that I make are just and equitable.
Costs
I note any application is not to be made pursuant to s 117 of the Family Law Act 1975 (Cth) (and the provisions of s 117(2A)). Either party (noting the applicant has not had legal representative and has no legal costs) may in fairness make an application now that my determination has been made but such application must be strictly limited as to the time of its making.
I certify that the preceding one hundred and sixty-five (165) paragraphs are a true copy of the reasons for judgment of the Honourable Deputy Chief Justice Faulks delivered n 7 March 2011.
Senior Legal Associate:
Date: 7 March 2011
Annexure 1: Minute of orders sought by the respondent
Until the Applicant complies orders 1-12 he is restrained, other than for the purposes of compliance with these orders, from making any withdrawals or drawdowns from St George loan account number […].
Within twenty-eight (28) days of these Orders, the Applicant do all things necessary to effect the sale of the property being the unexpired residue of the Crown Lease of the land known as [the property at K], being the whole of the land contained in Certificate of Title Volume: […] Folio: […] Block: […] Section: […] Division of [K] (“[the property at K]”).
The Applicant do all things necessary to cause the proceeds of the sale pursuant to Order 2, to be distributed as follows:-
a.To pay all costs, commissions and expenses of the sales;
b.To pay the usual rates adjustments;
c.To pay the amount required to repay the loans from St George Bank secured by way of mortgage against the [property at K] (“the [K Mortgage]”) and to discharge the [K Mortgage];
d.To pay to the Respondent a sum equal to:
70% x (the sale price of the [property at K] less the amounts paid pursuant to subparagraphs (a) and (b) above, less $102,649.22 (being the balance owing on St George loan account number […] as at 30 September 2010) less $51,600.65 (being the balance owing on St George loan account number […] as at 30 September 2010)); and
e.To pay the balance then remaining to the Applicant.
The Applicant pay the sum of $157,217.11 (“the First Payment”) (being 70% of the equity in the [property at M]) to the Respondent within 28 days of the date of these Orders (“the Due Date”).
Subject to Order 6, the Applicant pay the sum of $290,744.24 (“the Second Payment”) (being the payment necessary to provide the Respondent with 70% of the net value of the parties’ combined assets and liabilities other than the [property at K], the [property at M] and the loans secured against those properties) to the Respondent within 3 months of the date of these Orders (“the Second Due Date”).
If there are insufficient funds available from the proceeds of sale of the [property at K] to pay to the Respondent the sum to which she is entitled pursuant to Order 3(d) then the Second Payment shall be increased by a sum equal to:
The amount to which the Respondent is entitled pursuant to Order 3(d) less the amount that the Respondent received from the proceeds of sale of the [property at K].
If the whole of the First Payment has not been made by the Due Date:
a.The Applicant shall, in addition to the First Payment, pay to the Respondent interest on the First Payment or the amount outstanding from time to time at the rate prescribed by the Family Law Rules 2004 to be calculated from the Due Date to the date the whole of the First Payment is made, on a daily basis and without compounding;
b.Within 3 months of the Due Date the Applicant do all things necessary to effect the sale of property known as [the property at M] being the whole of the land contained in Folio Identifier […] (“[the property at M]”);
c.Within 28 days of the Due Date the Applicant do all things necessary to effect the sale of the [S Investment] account held in his name (“[the S Investment]”);
d.Within 28 days of the Due Date the Applicant do all things necessary to sell all the shares owned by him (“the share portfolio);
If the whole of the Second Payment has not been made by the Second Due Date:
a.The Applicant shall, in addition to the Second Payment, pay to the Respondent interest on the Second Payment or the amount outstanding from time to time at the rate prescribed by the Family Law Rules 2004 to be calculated from the Second Due Date to the date the whole of the Second Payment is made, on a daily basis and without compounding;
b.Within 3 months of the Second Due Date the Applicant do all things necessary to effect the sale of property known as [the property at M] being the whole of the land contained in Folio Identifier […] (“[the property at M]”);
c.Within 28 days of the Second Due Date the Applicant do all things necessary to effect the sale of the [S Investment] account held in his name (“[the S Investment]”);
d.Within 28 days of the Second Due Date the Applicant do all things necessary to sell all the shares owned by him (“the share portfolio);
The Applicant do all things necessary to cause the proceeds of the sales pursuant to Orders 7 ad/or 8 to be distributed as follows:-
a.To pay all costs, commissions and expenses of the sales;
b.To pay the usual rates adjustments in relation to the sale of the [property at M];
c.To pay the amount required to repay the loans from St George Bank secured by way of mortgage against the [property at M] (“[the M Mortgage]”) and to discharge the [M Mortgage]; and
d.To pay so much of the First Payment and the Second Payment as is then outstanding together with interest in accordance with Orders 7 and/or 8 to the Respondent; and
e.To pay the balance to the Applicant.
9.e.1.If the [property at K] is not sold within 3 months of the date of these Orders or the [property at K] is sold and the sale subsequently does not proceed to completion, the Applicant shall do all things necessary to offer the [property at K] immediately for sale by public auction and the following shall apply:
the agent shall be agreed between the parties or in default of agreement shall be an agent nominated by the President of the Real Estate Institute of the Australian Capital Territory (“the Agent”).
the reserve price shall be the market value of the [property at K] as agreed between the parties or failing such agreement as determined by a valuer nominated by the President of the Real Estate Institute of the Australian Capital Territory, such determination to be paid for equally by the parties.
10. The Applicant execute all document as request by the Agent as auctioneers for the sale of the [property at K] by Auction.
11. The Applicant execute a Contract of Sale.
12. The Applicant co-operate in every way with the Agent in relation to auction of the [property at K] including making the keys available for an inspection of the [property at K] at times requested by the Agent and ensuring that the [property at K] is in a clean and neat condition at the time of inspection by the prospective purchasers.
a.If the [property at K] is not sold at the Auction within 21 days thereafter, the Applicant shall meet the market price and sell the [property at K] at the best price then obtainable.
b.During the period that the [property at K] is being offered for sale, the Applicant allow prospective purchasers to inspect the [property at K] at all reasonable hours by appointment.
c.If the [property at M] is required to be sold pursuant to Orders 7 and/or 8 above and the [property at M] is not sold within 3 months of the of the date on which the sale is required pursuant to Order 7 or 8 or the [property at M] is sold and the sale subsequently does not proceed to completion, the Applicant shall do all things necessary to offer the [property at M] immediately for sale by public auction and the following shall apply:
the agent shall be agreed between the parties or in default of agreement shall be an agent nominated by the President of the Real Estate Institute of New South Wales (“[the M Agent]”).
the reserve price shall be the market value of the [property at M] as agreed between the parties or failing such agreement as determined by a valuer nominated by the President of the Real Estate Institute of New South Wales, such determination to be paid for equally by the parties.
13. The Applicant execute all documents as requested by [the M Agent] as auctioneers for the sale of the [property at M] by Auction.
14. The Applicant execute a Contract of Sale.
15. The Applicant co-operate in every way with [the M Agent] in relation to auction of the [property at M] including making the keys available for an inspection of the [property at M] at times requested by the Agent and ensuring that the [property at M] in is in a clean and neat condition at the time of inspection by the prospective purchasers.
a.If the [property at M] is not sold at the Auction within 21 days thereafter, the Applicant shall meet the market price and sell the [property at M] at the best price then obtainable.
b.During the period that the [property at M] is offered for sale, the Applicant allow prospective purchasers to inspect the [property at M] at all reasonable hours by appointment.
c.That the time limits and the terms and conditions for sale set by these Orders may be varied by the parties by written agreement.
d.That liberty be reserved to either party to apply to the Court on 7 days notice to the other with respect to the terms and conditions of the sale of the [property at K] or the [property at M].
e.That if either party refuses, fails or neglects to execute any document necessary to put these orders into effect 14 days after being requested to do so, and any such refusal, failure or neglect is proved by Affidavits filed and served by or on behalf of the party alleging this, the Registrar of the Family Court at Canberra be and is hereby appointed to execute such a document in the name of such party.
16. Within 28 days of the date of these Orders, the Applicant shall permit the Respondent to attend at the [property at M], with up to two companions of her choice, to remove from the [property at M] the following personal items and household goods:-
a.The Respondent’s clothing;
b.The Respondent’s snorkel and mask;
c.A single air mattress and foot pump;
d.A white cane chair;
e.A white cane table;
f.Two brown cushions;
g.Blue check woollen blanket;
h.Christmas decorations other than lights;
Dining Table and four chairs;
j.Floral seat cushions for dining table;
k.8 floral placements that match dining chair cushions;
l.White candle and metal stand;
m.Cream sofa bed from Freedom Furniture;
n.2 creams cushions that match the cream sofa bed;
o.2 brown and cream stripy cushions;
p.3 black floral pillos;
q.8 person dinner set with green and white flowers;
r.3 piece enamel bowl and lid set;
s.Small Christmas Bowl and pate knife set;
t.Melamine dish with koala picture;
u.Food processor and attachments;
7 piece glass dessert bowl set;
w.Santa Sleigh;
Wooden salt and pepper set with “Port Villa” written on it;
y.Brown pottery fruit bowl;
z.Teapot and coaster with hand-knitted tea cosy;
aa.Coffee plunger and coaster;
bb.Robert Gordon pottery kitchen utensil holder;
cc.Green spice rack;
dd.All cake pans;
ee.Blue enamel jug;
ff.Metal measuring container;
gg.All “Tupperware” branded containers;
hh.Small metal chimes made by the Respondent’s deceased sister-in-law [L];
Red stripey cotton hammock.
17. That unless otherwise specified in these 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 at the date of these Orders (the furniture, personal possessions and like chattels in the [property at K] and [property at M] being deemed to be in the possession of the Applicant).
b.Each party forego any claims he or she may have to any superannuation benefits belonging to or owned by the other.
c.Insurance policies remain the sole property of the beneficiary named therein.
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.
18. The Applicant pay the Respondent’s costs of and incidental to this Application.
19. Such further or other Order as the Court may deem fit.
Annexure 2 – Supplementary Minute of Orders sought by the respondent – 24 February 2011
That the Applicant will sell the [property at K] in the Australian Capital Territory (“[the property at K]”).
That, pursuant to Section 106A(1)(b) of the Family Law Act 1975, the Registrar of the Canberra Registry of the Family Court is appointed to execute any Deed or Instrument in the name of the Applicant that is necessary to cause the [property at K] to be listed for sale, by way of Private Treaty and for the sale to be completed including, though not limited to, the discharge of any mortgage secured by the [property at K].
That the Respondent or her legal representative will arrange for and oversee all aspects of the sale of the [property at K] until completion of the sale.
That upon the sale of the [property at K], the sale proceeds will be disbursed as follows:-
4.1.To meet the costs, commission and expenses of the sale;
4.2.To pay any outstanding rates or other statutory charges owing with regard to the [property at K];
4.3.To discharge any mortgages or loans secured by the [property at K];
4.4.The balance to be held in the Trust Account of KJB Law, to be distributed as agreed between the parties or otherwise ordered by the court.
That the Applicant will forthwith provide all keys in his possession or control for the [property at K] to the Canberra Registry of the Family Court.
That, if the Applicant has not done so already, within 21 days from the date of these Orders the Applicant will:
6.1.remove all household contents from within the [property at K] or the land on which it is situated, within 21 days from the date of this order;
6.2.undertake or arrange for any reasonably necessary repairs to the [property at K];
6.3.vacate the [property at K] and leave the [property at K] in a clean and tidy state including the yard, gardens and inside the home.
If any contents or other items that remain at the [property at K] after 21 days from the date of these orders may be disposed of at the Respondent’s discretion.
That the [property at K] is to be initially listed for sale at a price of no less than $520,000.00 and thereafter the sale price may be revised pursuant to any advice received from the listing agent.
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