Eastwick and Eastwick
[2014] FCCA 2016
•9 September 2014
FEDERAL CIRCUIT COURT OF AUSTRALIA
| EASTWICK & EASTWICK | [2014] FCCA 2016 |
| Catchwords: FAMILY LAW – Property – undefended hearing. |
| Legislation: Family Law Act 1975, ss.79(4), 75(2), Part VIII, s.117(2)(A) |
| Stanford v Stanford [2012] HCA 52 AJO & GRO (2005) FLC 93-218 |
| Applicant: | MR EASTWICK |
| Respondent: | MS EASTWICK |
| File Number: | BRC 5140 of 2013 |
| Judgment of: | Judge Coates |
| Hearing date: | 14 July 2014 |
| Date of Last Submission: | 24 July 2014 |
| Delivered at: | Brisbane |
| Delivered on: | 9 September 2014 |
REPRESENTATION
| Solicitors for the Applicant: | Madsen Law |
| Solicitors for the Respondent: | Self -Represented |
ORDERS
That the net pool of assets for division between the parties be constituted as follows:
ASSETS
Property
Owner
Held by
Value
Property P, Queensland
Husband and wife
Wife
$360,000.00
52% interest in Property Q, Queensland
Husband & husband’s son
Husband
$268,840.00
(omitted) Bank account number (omitted)
Husband
Husband
$1,568.00
(omitted) Bank account number (omitted)
Husband
Husband
$8,500.00
(omitted) 6 Sound Console
Husband
Husband
$35,000.00
Share Portfolio
Husband
Husband
$276,779.00
(omitted) Mercedes-Benz registration (omitted)
Husband
Husband
$12,000.00
(omitted) Mazda 6 registration (omitted)
Wife
Wife
$25,000.00
Kubota Tractor
Husband
Wife
$22,000.00
Music and sound equipment
Husband
Husband
$24,000.00
Property V, (NZ) ($220,000 NZD)
Husband and wife
Husband and wife
*$204,600.00
(omitted) Bank Account (omitted) ($8,900 NZD)
Husband and wife
Husband and wife
*$8,277.00
Bank accounts
Wife
Wife
Working balance
Partial property settlement
Wife
Wife
$10,000.00
TOTAL
$1,256,564.00
LIABILITIES
(omitted) Bank (NZ) Mortgage
Husband and wife
Husband and wife
$97,323.75
2012/2013 tax liability
Husband
Husband
$27,237.00
SUBTOTAL
$124,560.75
NET NON-SUPER POOL
$1,132,003.25
SUPERANNUATION
Superannuation (various)
Wife
Wife
$10,000.00
TOTAL PROPERTY POOL
$1,142,003.25
* Denotes exchange rate from New Zealand Dollars to Australian Dollars as at 08/07/2014 at $1 NZ = $0.93 AUD
That the net assets of the parties referred to in Order 1 be divided as to 85% to the husband and 15% to the wife.
To give effect to the division referred to in Order 2, Orders 4 to 10 apply.
That the husband forthwith retain as his absolute property, the title and possession of and the wife forthwith relinquish and transfer to the husband all rights, title and claim, if any, to and in:
(a)Property Q, Queensland;
(b)(omitted) Bank accounts numbered (omitted) and (omitted);
(c)The husband’s share portfolio;
(d)The husband’s (omitted) 6 Sound Console;
(e)The husband’s (omitted) Mercedes-Benz registration number (omitted);
(f)The husband’s Kubota Tractor and Accessories;
(g)The husband’s music and sound equipment; and
(h)The husband’s personal effects and chattels in the possession of the wife held at Property P, Queensland and referred to in Schedule 1 hereto (nominal value).
That the wife forthwith retain as her absolute property, the title and possession of and the husband forthwith relinquish and transfer to the wife all rights, title and claim, if any to and in:
(a)The wife’s bank accounts;
(b)The balance of the household furniture and chattels (nominal value);
(c)The Mazda 6 motor vehicle registration number (omitted); and
(d)The wife’s superannuation entitlements.
That the former matrimonial home situated at Property P more particularly described as (omitted) County of (omitted) and being all that land comprised on Certificate of Title Reference Number (omitted) be sold and the net proceeds of sale (after deducting any real estate agent costs and commission, payment of any unpaid rates and the conveyancing solicitor’s costs) be applied in the following manner:
(a)Reimbursement to the husband of any monies paid by him pursuant to Order 7(d) or (e) hereof;
(b)To the wife such sum as to deliver to the wife 15% of the total property pool after taking into account the items retained (and their ascribed value) by the wife in Order 5 hereof and the items retained by the husband (and their ascribed value) in Orders 4 and 9 hereof; and
(c)The balance to the husband.
That in order to give full force and effect to Order 6, the husband is appointed Trustee on behalf of the wife to do all acts and sign all documents on behalf of the wife, to effect the sale of the said property, including but not limited to:
(a)Appointing a real estate agent or agents to sell the property as the husband sees fit;
(b)Determining the list price for the property;
(c)Determining when to place the property on the market for sale, which in any event shall not be any later than twelve (12) months from the date of this Order;
(d)Determining (under advisement from the real estate agent appointed, if thought desirable) if any repairs or improvements ought to be carried out to the property, and if so, the husband shall in his absolute discretion and at the husband’s expense, carry out those improvements or any of them so as to improve the prospects of selling the property;
(e)Payment by the husband of any additional advertising costs or expenses to the real estate agent;
(f)Signing any contract for the sale of the property for and on behalf of the husband and wife;
(g)Signing any land transfer deed, document or instrument on behalf of the husband and the wife; and
(h)Appointing a solicitor to conduct the conveyancing transaction on behalf of the parties.
That so as to give full force and effect to Order 6, the wife shall, within twenty eight (28) days of being served a written notice (which may be served by email) by the husband to do so, permanently vacate the former matrimonial home (which shall include the removal of her personal effects and chattels, pursuant to these Orders) and not to re-enter the dwelling house or upon the land except with the prior written consent of the husband. Furthermore, the husband is permitted to and this Order authorises him to do so, call in aid of this Order the Queensland Police to remove the wife if she should fail or refuse to remove herself within the said twenty eight (28) day time period.
That on or before sixty (60) days from the date of this Order the husband and wife shall do all acts and sign all documents so as to effect the transfer to the husband of all of the wife’s right title and interest in the parties’ real property situated at Property V, New Zealand more particularly described as (omitted) Certificate of Title Reference number (omitted) and so as to give full force and effect to this Order:
(a)The husband shall prepare, at his expense, the prescribed land information New Zealand transfer documentation and deliver same to the wife for execution by her within fourteen (14) days of the date of this Order;
(b)The wife shall take all steps to properly execute and have properly witnessed the prescribed land information New Zealand transfer documentation and return same to the husband for execution by him within twenty eight (28) days of the date of this Order; and
(c)The husband shall pay, if and when due, all monies payable with respect to stamp duty and/or land information New Zealand lodgement fees with respect to the transfer.
That contemporaneously with the transfer referred to in Order 9 hereof, the husband and wife shall do all acts and sign all documents so as to refinance the mortgage to the (omitted) Bank (NZ) secured over the property referred to in Order 9 and refinance that mortgage into the husband’s sole name so as to cause the wife to be release from all personal covenants, guarantees and liability under that mortgage and in the meantime the husband indemnify and keep the wife indemnified from all liability howsoever arising therein.
That in the event the wife fails, refuses or neglects to execute any deed, instrument or documentation necessary to give effect to Order 9 or 10 made herein, then the Registrar of the Federal Circuit Court of Australia shall be appointed pursuant to s.106A of the Family Law Act 1975 to execute such deed or Instrument and do all acts and things necessary to give validity and operation to the said deed, instrument or document.
That within fourteen (14) days of the date of these Orders the wife shall make available for collection by the husband the items listed in Schedule 1 of these Orders.
That the wife pay the husband’s costs of and incidental to these proceedings, if not agreed then to be taxed on the Family Court scale and that such costs be referred for taxation under Chapter 19 of the Family Law Rules2004 to be conducted by the Family Court of Australia.
IT IS NOTED that publication of this judgment under the pseudonym Eastwick & Eastwick is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
SCHEDULE 1
(omitted) vacuum cleaner;
(omitted) stereo system;
(omitted) guitar and case;
Pioneer A/V/ Receiver;
Wall mirror oval shape;
Tall cane chair;
Indian wall hanging;
2 x (omitted) prints;
Panasonic cordless phone system (and 3 docking stations);
1 Oil column heaters;
Computer desk;
Office chair;
Husband’s clothing, shoes, belts, toiletries etc;
Wooden shelves with taped supports from mezzanine floor;
Half share of all books;
Kitchen scales;
A reasonable proportion of kitchen utensils including large kitchen knives, mugs, cups, plate sets;
Fliptop waste bin;
(omitted) Speaker;
Freestanding floor lamp;
Approximately 400 CDs belonging to the Husband;
2 CD racks;
Plasma TV;
Phillips stereo plus (omitted) plus (omitted);
Lounge suite 3 seater plus 2 seater;
Floor rug;
Set deck guitar stand;
Assorted tools;
Cycle helmet;
Medium steel step ladder;
Blue and white striped doona cover, doona, pillows and pillowcases;
Husband’s towels;
Husband’s tea towel;
(omitted) speaker box from (omitted);
Tree branch lopper;
Carved face;
Metal lizard ornament;
BBQ from northern deck;
Tool box on castors;
5 or 6 Folding outdoor chairs;
(omitted) public address system from main deck;
Yellow floodlight from main deck;
Heavy wooden bar from main deck;
Block powder coated metal frame shelving unit from main deck;
Carved wood box received from Husband’s Mother;
Concert photograph collection;
2 x black bar stools from main deck area;
(omitted) ceremonial belt hanging in hallway;
Photograph of Husband and (omitted) hanging in hallway;
Chest of drawers from (omitted) room;
Bedside drawers from (omitted) room;
Black leather chair from (omitted) room;
Bed, mattress, bedhead, doona, doona cover and matching linen from (omitted) room;
Ikea wall shelving from (omitted) room;
Pro audio equipment from (omitted) room;
Various garden tools and implements from under the house;
2 sets of wooden shelves from under the house;
Whipper Snipper from under the house;
PA system;
Shelves from (omitted) shop from under the house;
3 x chainsaws;
Aluminium step ladder;
Aluminium scaffold;
Concrete mixer;
2 x welders;
Garage jack;
Aluminium extension ladder;
Spare TV aerials ;
GMC metal drop saw;
GMC compound mitre saw;
Diesel generator;
Various boxes of nuts, bolts, fasteners, electrical tape and wires etc;
Flying fox line and trolley;
Filing cabinets;
Trailer;
Shed frame;
Pressure water cleaner;
Boxes of sound system cables including signal cables, mic cables, speaker cables, power cables;
Bottles and can of fuel, oil etc;
Work light on stand;
Base guitar, amplifier and extension speakers;
5 string bass guitar;
Bicycle;
Binoculars;
Collection of concert backstage passes and memorabilia;
Fishing rods, reels and assorted fishing gear;
Two bar mounted bicycle rack.
| FEDERAL CIRCUIT COURT AT BRISBANE |
BRC 5140 of 2013
| MR EASTWICK |
Applicant
And
| MS EASTWICK |
Respondent
REASONS FOR JUDGMENT
These are proceedings under s.79 of the Family Law Act 1975 (“the Act”) instituted by the applicant husband, MR EASTWICK, on 28 June 2013. He sought orders by way of property adjustment consequent upon the breakdown of his marriage to the respondent wife, MS EASTWICK.
The orders sought by the husband are detailed in draft orders handed to the court at trial on 14 July 2014 and made only slight changes to the orders he always sought, which was for a division of property 85 precent in his favour.
His case was based on his contributions and needs because he suffers Parkinson disease.
The wife has failed to file material or take part in the proceeding in any meaningful way or in any way in which I could assess her case.
She has not complied with five sets of orders to file material, each order extending the time for her to file.
I am satisfied that she was aware that the trial was listed for hearing on 14 July as she was present in Court on 11 April 2014 when the matter, which was to be heard that day, was adjourned on her application and set down again for 14 July 2014.
On 14 July 2014 I advised the wife that she would be allowed to participate by cross-examining the husband as to the admissibility of his evidence.
Before walking out of court, angry, she did put some questions to the husband’s medical specialist about a prescribed drug Siffrol and I was satisfied that the doctor assessed the husband as making rational decisions, after stating that some people do not make rational decisions on taking that drug. Siffrol is a drug prescribed for some sufferers of Parkinson disease.
The wife’s case seems to have been that the husband was not correctly diagnosed or that he is receiving the wrong drugs. Whatever is the case, she has refused to engage in any meaningful way with the process and comments in related judgments by her Honour Judge Purdon-Sully confirm that.
The wife’s irregular case can be seen in a letter which she sent to the court on 8 July 2014 which she referred to orally, which I regard as a submission and which I made exhibit 2 in this proceeding. The value in being able to read this letter is because from judgments delivered in the proceeding by Judge Purdon-Sully, I am of the view that the wife has always propounded a case not relevant to this proceeding, despite being warned often of the dangers of such a course.
Even on the trial day, she made bizarre claims that the police were after the husband because he could not make rational decisions but such claims, even if there was a basis for them, are simply irrelevant to this proceeding.
The wife also claimed that no lawyer would assist her but I was drawn to an order by consent made 20 August 2013 that the wife be paid $10,000 for legal costs from the joint assets, an amount which was paid.
Mr Madsen, for the husband stated that the wife told the court on a previous occasion that she had used the money to seek advice from a Melbourne lawyer who was attempting to prosecute some type of class action in relation to the drug Siffrol. The money paid to her for legal fees for this proceeding was wasted.
Whatever is the case, there was no evidence that the wife presented relevant to this property proceeding.
When I stopped her questioning because it was irrelevant to the hearing, the wife left the court.
Other orders have been made in order to manage the proceeding because of the wife’s obstinacy.
On 28 October 2013 orders were made for: The wife to vacate a joint asset, a Property P property between specific hours on 8 November 2013, to enable a valuer to conduct a valuation of that property; that she comply with order 1 of the orders dated 6 August 2013 and file and serve her response and supporting material upon which she intended to rely by no later than 4.00pm on 18 November and that costs be reserved. There were also two notations made to that Order:
“A. That it is in the interest of the Respondent that she obtain legal advice.
B. That in the event the Respondent fails to comply with Orders of this Court in relation to the filing of material, that the Court may consider proceeding with this matter on an undefended basis.”
On another occasion the matter was listed for mention on 6 February 2014 and final hearing on 11 April 2014.
On 6 February 2014 there was no appearance by the wife and the trial was set for 11 April 2014. Order 11 stated:
“11.That should the Respondent fail to comply with these Orders or fail to appear in person or be represented by a solicitor at Court on 11 April 2014, the Court will consider proceeding on an undefended basis.”
At the beginning of what was to be the final hearing on 11 April 2014, the wife sought an adjournment of the trial and was successful in that oral application. Judge Purdon-Sully gave detailed reasons in relation to the adjournment and listed the matter for final hearing on 14 July 2014, with further trial directions and an order that the wife pay the husband’s costs of 11 April 2014 on an indemnity basis, to be agreed, or failing agreement to be further mentioned at the final hearing on 14 July 2014. There was also a notation made by her Honour that should the wife fail to comply with the orders of 11 April 2014 or fail to appear on 14 July 2014, the court would consider proceeding on an undefended basis. There was no consent on the costs ordered and so the matter was re-mentioned before me on 14 July 2014.
At the final hearing on 14 July 2014, the wife again sought an adjournment, complaining that she was ill and had had no legal advice, however, the history shows that she has failed and refused to co-operate with the court and there have been five sets of orders to file material.
I am satisfied that she has had procedural fairness extended to her and that in the interests of justice, the trial should proceed on the basis that she could test the admissibility of the husband’s evidence.
The legal principles that I am required to apply in considering an application under Part VIII of the Family Law Act 1975 for property adjustment are set out in s.79(4) and s.75(2) of the Act.
The solicitor for the husband in his outline of submission filed 11 July 2014, in applying the decision by the High Court in Stanford v Stanford [2012] HCA 52, described stages to be taken for a property application.
Stage one was identifying the legal and equitable interests of the parties in property, stage two was considering whether intervention would be just and equitable, stage three was then determining entitlement and stage four was a prospective adjustment in the circumstances of the parties.
I am satisfied that it is just and equitable in the circumstances of this case, as a first decision, to make an order for property division adjustment as the parties relationship will not be reconciled.
In all the circumstances it is entirely appropriate and just that orders be made to assist these parties to affect an adjustment of their property assets and to enable them to end their financial relationship.
In considering what order should be made in property settlement proceedings, I am required to take into account the financial and non-financial contributions that the parties have made, to the welfare of the family constituted by the parties to the marriage and any children of the marriage, including any contribution made in the capacity of homemaker or parent.
I am also required to consider the effect of any proposed order within terms of the matters set out in s.75(2) of the Act.
The legal principles that I am required to apply have been set out in a number of decisions, including the High Court decision of Stanford and in a number of Full Court decisions including, for example, AJO & GRO (2005) FLC 93-218.
As to evidence, I have had regard to the following material:
a.The Initiating Application filed on 28 June 2013;
b.The affidavit of the husband filed 10 December 2013;
c.The affidavit of the husband’s solicitor, David Mark Madsen filed 8 October 2013;
d.The affidavit of the husband’s neurologist, Dr A filed 10 March 2014;
e.The affidavit of the husband filed on 14 March 2014; and
f.The outline of the husband filed 11 July 2014.
The husband is aged 59.
The wife is aged 67.
They met around December 2005.
They married (omitted) 2006.
The separated 17 February 2013.
The husband was diagnosed with Parkinson disease in 2005.
It is difficult to determine what the wife accepts about the diagnosis and various unsworn statements range from not accepting it to accepting it in part. There was no evidence even suggesting the diagnosis was not correct.
In relation to the net pool of property to be divided between the parties, the husband provided the schedule of assets. I accepted the schedule as admissible evidence because there was no case put that such was inadmissible.
The following then represents the pool available for distribution:
| Description | Owned by | Possessed by | Value |
| Property P (omitted) | husband & wife | wife | $360,000 |
| 52% interest in Property Q, QLD | husband & his son | husband | $268,840 |
| (omitted) Bank account number: (omitted) | husband | husband | $1,568 |
| (omitted) Bank account number: (omitted) | husband | husband | $8,500 |
| (omitted) 6 Sound Console | husband | husband | $35,000 |
| Share portfolio | husband | husband | $276,779 |
| (omitted) Mercedes-Benz registration (omitted) | husband | husband | $12,000 |
| (omitted) Mazda 6 registration (omitted) | wife | wife | $25,000 |
| Kubota Tractor | husband | wife | $22,000 |
| Music and sound equipment | husband | husband | $24,000 |
| Property V, (NZ) ($220,000 NZD) | husband & wife | husband & wife | $204,600 |
| (omitted) Bank Account (omitted) ($8,900 NZD) | husband & wife | husband & wife | $8,277 |
| Bank accounts | wife | wife | Working balance |
| Partial property settlement | wife | wife | $10,000 |
| TOTAL | $1,256,564 | ||
LIABILITIES
| Description | Owned by | Possessed by | Value |
| (omitted) Bank (NZ) Mortgage | husband & wife | husband & wife | $97,323.75 |
| 2012/2013 tax liability | husband | husband | $27,237 |
| SUBTOTAL | $124,560.75 | ||
| NET NON-SUPER POOL | $1,132,003.25 | ||
SUPERANNUATION
| Description | Owned by | Possessed by | Value |
| Superannuation (various) | wife | wife | $10,000 |
| TOTAL PROPERTY | $1,142,003.25 | ||
In accepting the husband’s evidence of the pool, the wife’s refusal to engage with the court process is in fact a complete failure to disclose her financial position and the higher courts state I can be generous in making orders based on a lack of disclosure. It is because information is being hidden.
In considering the history of contribution, the matters referred to by the husband appear to me to be admissible evidence.
In a very detailed manner he swears to his contributions and the calculations show that his initial financial contribution was between 80 and 85 percent when compared with that of the wife and he made numerous lump sum contributions from disability pensions, payments and termination payments.
The calculation provided in the submissions on his behalf show, which I accept, that he contributed in total $1.8 million compared with the wife’s contribution of $305,000.
As to non-financial contributions, I accept that the husband was generous with his finances towards the wife and she directly benefited by having living expenses paid, gifts, trips to New Zealand and (country omitted) and many dinners together.
His financial and non-financial contributions included:
a.Initial property ownership;
b.Various lump sum payments he received from both termination payments and health/disability insurance due to his condition;
c.Receipt of monies for selling property he owned;
d.Inheritance monies;
e.A cash payment to the wife’s son Mr S of $23,000 to discharge a mortgage;
f.Contribution to joint living expenses;
g.Completion of a course to allow him to become an (course omitted) of their residence;
h.Construction of the residence; and
i.Maintenance work.
The figures the husband refers to are contained in his amended outline of case document filed 11 July 2014 and come from his evidence. I have not referred to the figures as such but I am satisfied that the calculations of percentages I have referred to are undoubtedly correct.
It was this type of evidence which the wife refused to face.
It was submitted that the husband has been prudent with his money, and again, if this was in contention as a contribution issue, it should have been challenged.
The husband acknowledged the wife provided non-financial contributions, such as food preparation and this type of contribution should not be overlooked.
I would have real difficulty in forming any view other than the overwhelming contributions were made by the husband, probably in the range of about 85 percent.
What are often called the consideration of the needs of the parties are stated in s.75(2) of the Act.
As far as I know, the wife is healthy. I understand she is a (occupation omitted) by profession. She gave no evidence about her capacity to work.
The husband’s future is bleak.
He was diagnosed with Parkinson disease 10 years ago.
Dr A is the husband’s treating neurologist.
His qualifications seemed to be questioned by the wife in unsworn statements she has made to the court and in the letter which I am attaching to this judgment.
I was satisfied that since the 1970s, Dr A has studied Parkinson disease and undertook from that time study beginning at the Rochester Medical Centre in New York through the University of Rochester. He then practised in both New Zealand and Sydney and he established the first multi-disciplinary practice at Concord Hospital in Sydney in 1998-99, with assistance from the New South Wales Department of Health. He stepped down from heading that position last year.
His evidence was that the applicant husband has Idiopathic Parkinson disease.
He gave his medication and dosage and stated that the husband’s prognosis “is for progressive worsening of his condition with increasing motor disability, fluctuation in motor state, autonomic impairment and cognitive impairment”.
He gave evidence of stages of the disease, from initial impairments through to severe disablement, both physically and mentally.
Dr A painted a bleak picture for Parkinson disease sufferers. He said the husband will need more frequent medical attention to cope with needs, non-motor issues and management of cognitive confusion. He said the husband cannot be safely left alone for long periods and cannot be left because of the danger of falling and subsequent injury. He needs assistance with food preparation and financial management. He said that the husband will be required to meet much of the health and associated care himself. He said he will get some subsidy to assist him but could not say what that would be. He said many patients have to live in a nursing home because they have no other assistance.
Dr A attached to his affidavit a study on the costs of disability by a Dr Peter Saunders. The document was published by an organisation called the Social Policy Research Centre, part of the Faculty of Arts and Social Sciences of the University of New South Wales. Dr A said he has studied the Saunders report and agrees with its conclusions, which show that disabled people are usually in a very poor financial state.
He said the husband, putting aside anything he owns now, meets the criteria for disabled people as laid down by Dr Saunders and what can be expected as the disease progresses. Describing the effects on the husband because of his illness in this fashion allows for the admissibility of the Saunders’ report.
Apart from being asked to rely generally on the report, I was taken to heading 7, ‘Summary and Conclusions’ where it is stated that the living costs for disabled people in a situation similar to that of the applicant are as follows:
“… The costs of the disability are estimated to average around 29 percent of (equivalised) household income, rising to between 40 percent and 49 percent of income for those with a severe or profound restriction”.
I was then taken to Bureau of Statistics figures for household income and income distribution for 2011-2012, which concluded that a single person household would require $918 a week of disposable income to maintain average living standards. That was to be compared with the applicant’s income of $500 a week. The solicitor for the applicant then calculated that on his income, the applicant would be left with $234 a week with a moderate disability and between $133 a week and $50 a week with a severe disability, the range being within lower and upper estimates.
I accept Dr A’s evidence as showing that the husband is facing great physical and mental difficulty in the future. The report’s evidence is that the research shows the husband’s costs for his own care will reduce his income available for other expenditure by about 29 percent, the figures being based on his $19,916 a year income (disability support payment) which will be reduced to $13,490 a year as the disease progresses. There was no evidence that the disease would not progress.
Faced with this material, relied on to be admitted as evidence, the wife asked some questions of Dr A but nothing relevant apart from her question relating to the drug Siffrol. In fact, she made an aside comment about the material, indicating that she did not agree with it. While I could take that as an objection, the material itself, while not the work of Dr A, was relied on by Dr A and he said he had studied it contents and agreed with the findings.
On that basis, because the husband is suffering Parkinson disease, the material is also admissible as the adopted evidence of the expert medical specialist, Dr A.
The standard of living for both parties changed at separation, however, the wife’s determined refusal to take part in this proceeding means that I can only try and arrive at a figure which would be just and equitable taking into account all relevant factors, trying to weight them accordingly. It should come as no surprise that such is virtually an impossibility when no material has been filed and submissions have gone to irrelevant matters outside the property proceedings.
While the husband qualifies for his evidence to be weighted in his favour, which it is, I would not adjust the figure I arrived at earlier. The figure I have arrived at reflects his contributions and on weighing the s.75(2) factors, I conclude that those factors will be addressed on the percentage adjustment as proposed by the husband and found by the court to be proper.
If I am incorrect in that approach, it would not be just and equitable to award more to the husband because inevitably the wife did contribute to this marriage.
The orders then will be those as sought by the husband and a previous costs order had been made which I referred to.
Given previous difficulties with the wife, some of which I have referred to, I will also make the husband trustee for the sale of the home to avoid any obstructiveness which might arise on the wife’s part.
The husband also sought costs should he be successful.
Section 117 of the Act recognises that each party would usually bear their own costs unless there is some circumstance which would justify the making of a costs order.
In my view there is such a circumstance and that is the wife’s failure and refusal to cooperate with the court and because such has delayed this matter which has increased the husband’s costs.
I can then only make a costs order once I consider the statements in s.117(2)(A) of the Act.
The husband provided most of the assets of the parties and has contributed his disability payments.
His financial statements shows he earns $766 a week with expenditure of $1,215 a week.
His liabilities are $77,000 worth of debt.
The wife has refused and failed to cooperate with the court process so I have no idea of what her financial situation is.
Neither party is on legal aid.
The conduct in this case by the wife has caused unreasonable delays in the process of deciding this application.
The wife has been ordered on five separate occasions to file her material and she has simply ignored such orders.
She has had to be told to leave the marital property in order for valuations to occur and that necessitated an application to the court.
That is evidence of her attitude to the court and to the proceedings and I agree with the submission of the solicitor for the applicant, that she “has proven herself to be quite unable to cooperate with this court process and has proven herself impervious and disdainful to previous orders”.
The submission in the husband’s case was that the refusal by the wife to cooperate was really a lack of disclosure, a submission that I accept.
Disclosure is mandatory for these proceedings and acting in a manner that suggests that the husband has wrongly brought proceedings because of the influence of prescribed medication for Parkinson disease, is simply bizarre. She has not disclosed her financial position and it is open to determine that it is better than she makes out. I find that to be the case.
The wife has simply caused the husband’s costs to rise.
She has been wholly unsuccessful.
The wife was provided with $10,000 by a consent order to engage a solicitor for this proceeding and simply refused to engage a solicitor relevant to this proceeding. She wasted that money on legal advice irrelevant to this matter.
I am told that her Honour Judge Purdon-Sully also warned her that irrelevant issues would not be considered.
The wife sought an adjournment of the trial set in April which caused the husband’s costs to rise and again she sought an adjournment on the day of trial, 14 July 2014.
As for the offer to settle, the husband’s solicitor Mr David Madsen, swore an affidavit on 11 July 2014 which exhibited a written letter of settlement sent on the husband’s instructions on 15 October 2013.
The offer was to provide a replacement residence for the wife to the value of $395,000, which then represented 31.10 percent of the property pool. Mr Madsen said on today’s figures that would represent 34.58 percent of the pool. He said the offer was made very early and was exceedingly generous to the wife, a submission which matches the husband’s evidence that he was generous to the wife.
The offer of course was refused by the wife.
Had the wife rationally considered the husband’s position in suffering from Parkinson disease, which is progressing and for which there is no known cure instead of pursuing an irrelevant case that the husband had been wrongly medicated then this case would never have needed to come to trial.
The husband has expended far more than he should reasonably have been expected to do so and an order was made for indemnity costs on 11 April 2014, which seemed to have been reserved for this hearing if there was no agreement. There has been no agreement and on that basis the husband should be indemnified as to costs, both up until 11 April 2014 and for the further costs of preparing for this hearing. The order will be costs as agreed or as taxed, so there is no further delay in having the costs paid to the husband.
I certify that the preceding ninety-nine (99) paragraphs are a true copy of the reasons for judgment of Judge Coates
Date: 9 September 2014