FODE and SELWOOD
[2015] FCWA 89
•13 NOVEMBER 2015
JURISDICTION : FAMILY COURT OF WESTERN AUSTRALIA
ACT: FAMILY LAW ACT 1975
LOCATION: PERTH
CITATION: FODE and SELWOOD [2015] FCWA 89
CORAM: WALTERS J
HEARD: 24-25 SEPTEMBER 2015
DELIVERED : 13 NOVEMBER 2015
FILE NO/S: PTW 5273 of 2011
BETWEEN: MS FODE
Applicant
AND
MR SELWOOD
Respondent
Catchwords:
FAMILY LAW – PROPERTY – where s 79 orders were made by consent in 2012 – where the orders were set aside (again by consent) in 2015 – where net value of property available for distribution between the parties is minimal – where wife alleges husband has an entitlement to unpaid superannuation contributions – where allegation based on assertion that husband was an employee and not a sub-contractor – where husband denies he was an employee – whether alleged potential claim for unpaid superannuation contributions is a chose in action – whether it can be considered just and equitable for the Court to make orders for alteration of property interests – whether the proceedings should be adjourned to enable or compel husband to make some form of claim regarding the alleged unpaid superannuation contributions – discussion of Court's powers to adjourn proceedings under s 79(5) and generally – consideration of elements of s 79(5) – consideration of meaning of the word "likely" in s 79(5) – finding that it would not be a valid or principled exercise of the Court's discretion to adjourn the proceedings – application for s 79 orders dismissed – consideration of the High Court’s decision in Stanford & Stanford (2012) 87 ALJR 74 and subsequent Full Court decisions
Legislation:
Family Law Act 1975 (Cth)
Family Law Rules 2004
Category: Not Reportable
Representation:
Counsel:
Applicant: Self Represented Litigant
Respondent: Self Represented Litigant
Solicitors:
Applicant: Self Represented Litigant
Respondent: Self Represented Litigant
Case(s) referred to in judgment(s):
Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175
B & B [2006] FamCA 883
Best and Best (1993) FLC 92-418
Bevan & Bevan [2013] FamCAFC 116
Black & Kellner (1992) FLC 92-287
Bolger & Headon [2014] FamCAFC 27
Bonacci & Bonacci [2012] FamCAFC 15
Briese & Briese (1986) FLC 91-715
C & C (2005) FLC 93-220
Chang v Su (2002) FLC 93-117
Chapman & Chapman [2014] FamCAFC 91
Cheung v R (1999) 73 ALJR 1093
C & C [2001] FamCA 548
Clauson & Clauson (1995) FLC 92-595
Dekker & Dekker [2014] FCWA 61
Dickons & Dickons [2012] FamCAFC 154
Dow-Sainter & Dow-Sainter (1980) FLC 90-890
Duff & Duff (1977) FLC 90-217
Fielding & Nichol [2014] FCWA 77
Fitzgerald-Stevens & Leslighter [2015] FCWA 25
G & G [2004] FamCA 1179
Giunti & Giunti (1986) FLC 91-759
Hearne & Hearne [2015] FamCAFC 178
Hickey & Hickey & Attorney-General for the Commonwealth of Australia (Intervener) (2003) FLC 93-143
Idoport Pty Ltd v National Australia Bank Ltd [2001] NSWSC 1081
K & K (2002) FamCA 1150
Keehan & Keehan [2015] FamCAFC 122
Ketteman v Hansel Properties Ltd [1987] AC 189
Krischell Pty Ltd v Nilant & Ors (2006) 32 WAR 540
Loxton v Moir (1914)18 CLR 360
Manolis & Manolis (No. 2) [2011] FamCAFC 105
McMahon & McMahon (1995) FLC 92-606
Mezzacappa & Mezzacappa (1987) FLC 91-853
Norbis v Norbis (1986) 161 CLR 513
Oriolo & Oriolo (1985) FLC 91-653
OSF & OJK (2004) FLC 93-191
Perrett and Perrett (1990) FLC 92-101
Re F – Litigants in Person Guidelines (2001) FLC 93-072
Reed and Reed v Draper (1995) FLC 92-649
Reichstein & Reichstein (2006) FamCA 1422
Russell v Russell (1999) FLC 92-877
Saxena & Saxena (2006) FLC 93-268
Scott & Danton [2014] FamCAFC 203
Spellson & Spellson (1989) FLC 92-046
Stanford v Stanford (2012) 247 CLR 108
Steinbrenner & Steinbrenner [2008] FamCAFC 193
W and W (1980) FLC 90-872
Weir & Weir (1993) FLC 92-338
WORDS IN SQUARE BRACKETS REPLACE WORDS USED IN THE ORIGINAL JUDGMENT - PARTIES’ NAMES AND IDENTIFYING DETAILS HAVE BEEN CHANGED
Introduction
1Before the Court is the wife's application for alteration of property interests. There are some unusual elements to the application.
2In May 2012, final property orders were made by consent. The consent orders were made by a Registrar in chambers, following negotiations between the parties, and purported to deal with the parties' property as it then existed. In August 2014, however, the wife applied to set aside the consent orders under s 79A(1)(a)
3The consent orders were ultimately set aside (by agreement) in June 2015. The Court was then asked to re-exercise its discretion, and to make further orders under s 79.
4The primary thrust of the wife's claim was that the husband had an entitlement to unpaid superannuation contributions. The claim was based on an assertion that, although the husband had done certain work for various corporations in the role of a sub-contractor, he was, in fact, an employee of those corporations. As a consequence, the corporations should have contributed to a superannuation scheme on his behalf. For his part, the husband did not accept that he had any entitlement to unpaid superannuation. Further, he argued that even if he had such an entitlement, no further orders should be made by way of property settlement.
5For reasons which will become apparent, I have concluded that the wife's application for property settlement should be dismissed.
Both parties were unrepresented
6Given that both parties were unrepresented, I was very conscious of the obligation upon the Court to provide a fair trial. I am aware of the guidelines regarding the manner in which a judicial officer should deal with unrepresented litigants, and the associated discussion contained in Re: F – Litigants in Person Guidelines (2001) FLC 93-072 at [209] to [253]. I applied those guidelines during the course of the proceedings, and am comfortable that the trial was fair. In summary:
(a) procedural fairness was afforded to both parties;
(b)the "mechanics" of the trial, and the right of the parties to cross-examine witnesses, were explained to them;
(c) other relevant procedures were explained to the parties as they arose;
(d)I explained to the parties that they had the right to object to inadmissible evidence, and explained to them – in very broad terms – the types of evidence that might be considered inadmissible;
(e)where appropriate, I attempted to clarify the substance of the parties' submissions; and
(f)where appropriate, I took other steps as authorised by the Full Court in Re: F – Litigants in Person Guidelines (supra) at [253]: see Guideline #9 in that paragraph.
7In Saxena & Saxena (2006) FLC 93-268, Coleman J emphasised that the type of guidelines set out in the previous paragraph are "no more than the name implies" and that they "derive from the broader considerations of natural justice, implicit in which is the recognition that for a litigant in person to be afforded natural justice and procedural fairness, that litigant must have some appreciation of just what is going on". His Honour added that the Court must be concerned with "the spirit rather than the strict letter of the guidelines".
8In the present case, both parties participated in the process to the extent to which they were able. I have no doubt that they fully understood "what was going on" at all times.
Documents relied upon
9The wife relied upon her affidavits sworn 6 August 2014 ("WA1"), 13 May 2015 ("WA2") and 20 August 2015 ("WA3"), together with her financial statement sworn 13 May 2015. She did not file papers for the judge.
10The husband relied upon his affidavits sworn 3 June 2015 ("HA1") and 9 September 2015 ("HA2"), together with his financial statement sworn 20 February 2015.
11There is a great deal of inadmissible material in the both parties' affidavits – including statements of belief, hearsay, argument and the like. I have given no weight to such material. It is clear beyond argument that affidavits must be confined to admissible evidence, and to facts about the issues in dispute: see, for example, Rule 15.09 of the Family Law Rules 2004. In a very real sense, a significant proportion of the parties' affidavits was based on assumptions and speculation.
The parties' presentation
12The parties presented very differently. I accept that litigation is a very stressful experience – particularly for a litigant who is unrepresented. Anxiety and nervousness are to be expected in such circumstances, including while giving evidence. In my opinion, however, neither party's demeanour in the courtroom could fairly be regarded as attributable (or substantially attributable) to such considerations. The husband appeared overawed by the trial process, but seemed (subject to the comments I have made below) to do his best to answer questions asked of him and to respond to queries from the bench. The wife, on the other hand, presented as strident, combative and indignant. She made no attempt to disguise her scorn for the husband and did not hesitate to taunt or mock him when the occasion arose. She treated him with disdain and condescension, and seemed unable overcome her bitterness towards him and his partner, [Ms C].
13Overall, the wife presented as frustrated, petulant and sarcastic. Her ill feeling towards the husband runs very deep indeed, and her distrust and suspicion of him were palpable. She obviously feels that she has been deeply and irreversibly injured (emotionally) by the husband and Ms C.
14That the husband did not display the same degree of vindictiveness towards the wife as she displayed towards him does not necessarily mean that his credibility remained intact. In many respects, he was a poor witness: for example, his answers were sometimes vague or non-responsive. To a large extent, however, his demeanour in this regard reflected little more than a desire on his part to protect himself from the wife's overbearing approach to cross-examination (and the trial process generally), and her sustained and caustic attack on all aspects of his character and behaviour.
15I find that neither party was a credible witness. I have much discomfort with the evidence of each. Wherever possible, therefore, I have preferred to rely on matters that were not in dispute between the parties and to give weight to evidence supported by independent sources. Regrettably, there was precious little of that.
Background, and relevant financial and litigation history
16In these Reasons, and unless otherwise indicated:
(a) all statements of fact comprise findings of fact;
(b)I have referred to the parties as the wife and the husband (and I mean them no disrespect by doing so) – because it is less confusing than referring to them as the applicant and the respondent;
(c)I have not drawn a distinction between proceedings or events before a family law magistrate and proceedings or events in the Family Court of Western Australia;
(d)I have referred to all affidavits filed by or on behalf of the parties as being "sworn", even if they were affirmed by their deponents (and I note that, in a slightly different context, s 5 of the Interpretation Act 1984 (WA) provides among other things that "to swear" includes "to affirm"); and
(e)references to legislation are references to the Family Law Act 1975 (Cth) – although, when necessary, I have referred to this enactment as "the Act" or the "FLA".
Brief overview
17The husband was born in [in] 1956. The wife was born [in] 1963.
18The parties met in 1991 and married (in [New South Wales]) [in] 1992. They separated in October 2010 and divorced in December 2013. Both had been married previously, and had children from their former relationships.
19There is one child of the parties' marriage – [H], who was born [in] 1995. H is now 20 years of age.
20The husband is presently living with Ms C in [South Australia]. It seems that the husband and Ms C commenced a relationship in or about April 2010 – some six months before the parties separated. It also seems that both parties have known Ms C for many years.
21The wife continues to live in Western Australia, but indicated during the trial that she proposes to move to [her country of origin].
22The end of the parties' relationship, and the circumstances in which it broke down, caused the wife a great deal of anguish. She has had enormous difficulty coming to terms with the separation, for which she holds the husband entirely responsible
Arrangements during the marriage
23The husband is [an engineer]. He said that he has worked as a [engineer’s assistant] and engineer most of his life. At the commencement of the relationship, he was working as an employee. In 1993, he commenced working as a contractor. He frequently worked away from home. The wife asserted that she was "left at home" to raise her two daughters from her previous marriage, and H, by herself.
24The husband initially worked under the style or business name of [Selwood Engineering]. He later worked under the style or business name of [Selwood Contracting]. At some stage, the [engineering] enterprise was carried on by [M Pty Ltd]. From at least August 2004, the husband earned a very significant income from engineering. According to the wife, his income was approximately $300,000 per year until 2011.
25From the commencement of the relationship until 2004, the parties lived in New South Wales. They then relocated to Western Australia and the husband "started doing FIFO work".
26In 2007, the parties opened a restaurant called [L’s Restaurant] ("the Restaurant") in [Suburb N], Western Australia. According to the wife, the Restaurant was used "as a tax deduction for the husband's engineering business". According to the husband, the Restaurant was opened because it was what the wife "had wanted all her life". Because the wife was bankrupt at the time, the Restaurant was nominally conducted by the husband and one of the wife's daughters from a previous relationship. It would appear that the liquor licence was in the husband's name. The wife ran the Restaurant and said that she spent approximately 12 hours per day there. She also said that she "did not have time to do the book work" (and suggested that the husband should have done it when he was not working away from home).
27According to the husband, the wife was responsible for the parties' finances and bank accounts, and for doing the invoicing and paperwork associated with the husband's engineering activities. She was also responsible for the financial management of the Restaurant.
28The husband asserted that the wife mismanaged the parties' financial affairs, and failed to account for very significant amounts of money over which she had control. For example, he alleged that during the two years leading up to the parties' separation in October 2010 the wife received the benefit of approximately $300,000 – which she transferred from an account associated with his engineering business to an account somehow connected with her. The account was in the name of [K Pty Ltd]: see HA1 at [27] and annexure C.
29According to the wife, when the husband was not rostered to work away from home, "he spent most of his time drinking, fishing and spending time with [H]".
30As indicated above, the parties separated in October 2010. The Restaurant was closed down shortly afterwards. It seems that the wife made a rather unsuccessful effort to bring the financial records of the Restaurant up to date after it had closed. Following a dispute between the parties, the relevant documents were eventually delivered to the husband's accountants in South Australia in April 2011. The fate of the documents since that time is unclear.
The wife injures the husband
31As indicated above, the wife was distraught as a result of the separation. [Sometime in] 2010, the wife attempted to run the husband down in her motor vehicle. She eventually caused the motor vehicle to strike him and injure him. The incident was described in the local media see HA1.
32It is unclear what happened at [a court] appearance [in] 2011.
33The wife maintained that she has no memory of the incident.
34The husband suffered a crush injury to his left leg. No fracture was detected. He suffered associated bruising, swelling and pain, and was unable to work for a few weeks or months. There is no evidence of any residual disability as a result of the injury, although the husband clearly found the entire event very distressing.
After separation
35It seems that H continued to live with the wife for a short time after separation. She then lived with Ms C for approximately three months before returning to live with the wife. H was 15 at the time.
36The husband made some financial contributions towards H’s support while she lived with the wife. From the time he was declared bankrupt in July 2011 (see below), however, there were ongoing disputes between the parties regarding the husband's true financial position and the level of financial support he should provide for H and the wife. According to the wife, the husband established a family trust – known as the [C Family Trust] ("CFT") – through which his services were provided to contractors who required his engineering services. The trustees of the CFT were Ms C and the husband's son, [P], from a previous relationship. To make matters more complicated, CFT allegedly provided the husband's services to [W Pty Ltd] ("WPL"), a corporate entity controlled by the husband's sister and his brother-in-law. In other words, the husband was paid by CFT, which would then invoice WPL, which would in turn invoice the head contractor. It seems, however, that this arrangement only adhered for a period of approximately six months from mid-2011 to early 2012.
37Exhibit W1 comprises affidavits sworn by the wife and husband in these proceedings on 17 November 2011 and 9 January 2012 respectively. Leaving aside the inadmissible material contained in the affidavits, it is apparent that during the second half of 2011 the husband sought to conceal his true income (from the wife, the Child Support Authority and, arguably, from his bankruptcy trustees as well). Relevantly, the nature and effect of the arrangement between WPL and CFT was not fully disclosed. In her affidavit of 17 November 2011, the wife said at [6] (minor grammatical errors corrected):
Since 2 September 2011 [CFT] has earned $55,275 from the contract in the Pilbara WA where [the husband] has worked… Yet [the husband] is claiming he has earned only $7272 for the same two month period, which is a shortfall of over $48,000 – and yet [the husband] has not given any money to support [[H]] or to the Bankruptcy Trustees to pay his debts.
38I am comfortably satisfied that the husband did indeed divert income to which he was properly entitled to or for the benefit of others (in particular, Ms C). It is unclear what happened to these moneys, but it seems that the arrangement did not continue for longer than six or eight months and that the husband's bankruptcy trustees were well aware of it by the time the 2012 consent orders were made.
39In cross-examination, the husband conceded that certain statements made in his affidavit of 9 January 2012 were incorrect. For example, he asserted in the affidavit at [6] that the wife was a beneficiary of CFT. She was not. He also asserted in the affidavit at [9] that the wife would have known that he worked for WPL because she "raised the invoices for the work I did". She did not.
Child support
40The wife alleged that the husband had failed to provide adequate child support for H (before she turned 18), and for herself. I do not accept the wife's assertions in this regard. Annexure B to HA2 comprises a Child Support Transaction Statement relating to the period from 22 January 2004 to 25 July 2015. The husband said, and I accept, that he paid a total of approximately $61,500 by way of child support and spousal maintenance during that period. It is unclear whether that figure includes late payment penalties.
41The parties' various disputes regarding child support were dealt with adequately by the Child Support Agency at all relevant times. There was no evidence at trial that inadequate child support was paid.
The wife's gambling
42The wife admitted that she had "a gambling problem" during the relationship. Beyond that, the subject was not explored at trial.
43The wife was either declared bankrupt or entered into a Pt X arrangement with her creditors in or about 2005. Alternatively, she may have been declared bankrupt on one occasion and entered into a Pt X arrangement with her creditors on another occasion
The husband's bankruptcy
44The husband was declared bankrupt on 14 July 2011 pursuant to a Debtor's Petition. Initially, the Official Trustee was trustee of the bankrupt estate but on 23 December 2011, [Mr P] and [Mr M] of [PM Partners] (an accounting firm in [Adelaide, South Australia]) became joint and several trustees.
45According to the trustees' Report to Creditors dated 17 February 2015 (see WA1, Annexure D), Selwood Contracting was recorded as an "associated entity". The report refers to the litigation between the parties in this Court and notes that a substantial amount of documentation was subpoenaed by the parties in relation to the husband's income and former businesses. The report also records:
Our staff liaised extensively with [the wife] regarding her claims and the bankrupt's property. We also approached an experienced family law practitioner to consider the applications and to assess a reasonable split of property between the parties.
To avoid the costs of having the matter proceed to trial, a conciliation conference was held on 2 April 2012 to try and agree to a split of property, which we attended.
After lengthy negotiations with both parties, we executed a Minute of Consent for a split of the assets that are available…
46The report observes that "the bankrupt's superannuation is exempt from being realised into the estate pursuant to s 116(2) of the Bankruptcy Act 1966 (Cth)".
47After the making of the 2012 consent orders, it was the view of the trustees that there were no remaining divisible assets of the estate that could be commercially realised.
48Included within a list of unsecured creditors was the Deputy Commissioner of Taxation, who had claimed close to $130,000 from the husband's estate. The Commonwealth Bank was also an unsecured creditor, claiming close to $15,000.
49The report also reveals that the trustees had performed work up to and including 5 February 2014 totalling close to $40,000. They estimated that their "current and future remuneration" would total close to $50,000.
50The husband was discharged from bankruptcy on 15 July 2014.
Abridged summary of the litigation
51Proceedings commenced in this Court in September 2011, when the wife filed an application initiating proceedings. She sought orders for alteration of property interests. The husband was bankrupt at the time, and the Official Trustee (Insolvency & Trustee Service Australia) was joined as a party to the proceedings on 27 October 2011.
52On 9 November 2011, the husband was ordered to pay the wife $750 per week by way of interim spousal maintenance.
53In April 2012, the husband's bankruptcy trustees (Mr P and Mr M) were substituted for the Official Trustee as second respondents in the proceedings.
54On 10 May 2012, final property orders were made by consent ("the 2012 consent orders"). The 2012 consent orders were made by a Registrar in chambers. I need not reproduce the orders in these Reasons. They speak for themselves. It is important to note, however, that para 3 of the 2012 consent orders was in the following terms:
The husband pay to the wife the sum of $19,500 by weekly instalments (of $375 per week) …
55In September 2012, the wife appealed a child support assessment relating to H (who was then aged 17).
56On 11 December 2012, orders were made in relation to the wife's child support appeal. Among other things, it was ordered that para 3 of the 2012 consent orders "be deemed a spousal maintenance order".
57On 1 May 2013, a declaration was made to the effect that the husband was in arrears of spousal maintenance in the sum of $22,875.
58On 23 October 2013, the wife's child support appeal (filed in September 2012) was dismissed.
59As indicated above, the parties divorced in late 2013.
60On 13 August 2014, the wife filed a further initiating application for financial orders – to which the husband did not file a response until 8 June 2015. In the meantime, the wife filed an application for contempt on 18 December 2014. That application was discontinued on 22 January 2015.
61The wife's initiating application filed in August 2014 sought, among other things, that the 2012 consent orders be set aside and that other property orders be made in their place.
62On 16 March 2015, the wife was given leave to proceed with her initiating application on an undefended basis and the proceedings were included in the Callover for listing in August 2015. The effect of these orders was to awaken the husband's interest in the proceedings. As indicated above, he filed a response to the initiating application on 8 June 2015.
63On 22 June 2015, it was ordered – by consent – that paras 2 to 10 (inclusive) of the Minute of Consent Orders attached to the 2012 consent orders be set aside. The orders were made pursuant to s 79A(1A). The trial listed for 24 August 2015 was vacated, and directions were made for both parties to file further material before the reallocated trial date.
64The trial took place on 24 and 25 September 2015. The parties represented themselves. At the completion of the hearing, judgment was reserved.
Issues relating to the 2012 consent orders
65According to the wife, the husband did not comply with the 2012 consent orders. For example, he failed to disclose that certain engineering equipment was broken or missing, and failed to deliver up other pieces of equipment. More importantly, he did not disclose that he had superannuation entitlements beyond those disclosed at the time of the making of the 2012 consent orders. The wife accepted that she received half the husband's superannuation from his Cbus account, totalling $15,000. She asserted, however, that he also had superannuation accounts with "Coal super" and SunCorp. Further, she asserted that, because he had "traded as a sole trader between October 2004 and June 2011" he had "several thousand dollars of unclaimed super": see WA1 at [8].
66According to the wife, the "unclaimed super" came about in the following manner:
(a)In or about 2007, the husband had the opportunity to obtain work in the construction industry. He appears to have been offered the opportunity on the basis that he would be a sub- contractor (as opposed to an employee).
(b)The head contractor urged the husband to take steps to incorporate a private company (and be employed by that company) "so that he had no come back to claim on super from (the head contractor)": see WA1 at [8].
(c)The husband then incorporated a private company, which became the sub- contractor and which employed him to carry out the relevant work.
(d)Seemingly at the request of the husband, the wife contacted the Australian Taxation Office ("ATO") at a later stage to find out whether superannuation contributions could be claimed from the head contractor.
(e)The wife's evidence was that she had been informed (orally) by an officer of the ATO that, in fact, the husband should be treated as if he were an employee and should be entitled to claim superannuation contributions from the head contractor for the period during which he was deemed to be an employee.
(f)The wife also asserted that the husband was aware of his potential entitlement in this regard but "decided not to claim the super until he retired, as it would affect his future employment with (the head contractor)": see WA1 at [8].
67The wife said in WA1 that she had endeavoured to obtain from the ATO clarification of the husband's entitlement to unpaid superannuation, but that she had been unsuccessful in that regard.
68It became clear at trial that issues regarding the engineering equipment previously used by the husband were no longer of significance, and neither party pressed for orders relating to the equipment. In any event, neither party presented credible evidence regarding the existence, whereabouts or value of the equipment.
69The wife also raised a litany of other complaints in her affidavits, none of which were pursued – or even deemed relevant – at trial. For example, she complained that the husband had not paid appropriate child support for H, that he had somehow misled his bankruptcy trustees as to his true income during his bankruptcy and that he had commenced a relationship with Ms C some six months before the parties separated. She also alleged that she had not properly investigated the husband's financial position at the time of the making of the 2012 consent orders because she was suffering from depression (and from the side-effects of medication she was taking for depression) at the time.
70If they were ever of any relevance, most of these matters became of no significance as a result of the orders made on 22 June 2015 setting aside the 2012 consent orders.
71I accept, however, that the wife suffered from anxiety and depression in 2011 and 2012. In February 2012 she took an overdose of prescription medication as a result of which she was hospitalised for a short time. She had also taken overdoses of prescription medication on a number of occasions in 2010 and 2011 and self-harmed on at least one occasion in 2010.
Alleged "unclaimed superannuation" claim
72As indicated above, the wife asserted that the husband was an employee of each head contractor for whom he performed work between 2004 and 2010.
73In support of her assertion in this regard, the wife pointed to a document headed "Employee/contractor report" completed online through the ATO website. The report comprises annexure B to WA1. The information in the report was provided by the wife. Obviously, there is no evidence as to what each head contractor would have said in response to the questions contained in the report. It is fair to assume, however, that they would take issue with certain of the statements made by the wife in the report. After all, and as the wife said in WA1, the primary purpose for the husband being requested to do sub-contract work through an incorporated entity was "so that he had no come back to claim on super from (the head contractor)". Indeed, the report is designed to be completed by the contractor or alleged "employer" – not by the worker.
74Some of the answers given to various questions contained in the report seem controversial. For example:
(a)Question: Do you pay a company, partnership or trust (other than a labour hire firm) for the services of the worker? Answer: No.
(b)Question: Can the worker pay another person to do the work instead of them? Answer: No.
75It seems clear that, at least in relation to the period after separation, the head contractor did pay a company or trust for the husband's services (namely WPL and, directly or indirectly, CFT). Indeed, it was part of the wife's case that the husband was employed by CFT which rendered invoices to WPL (controlled by the husband's sister and brother-in-law), which in turn rendered invoices to the head contractor. Further, there seems to be no reason why the husband (through CFT, or perhaps WPL) could not have engaged someone else to do work for him.
76Suffice it to say that the very limited information provided by the wife regarding this subject does not persuade me that it would be an easy task to claim alleged unpaid superannuation from each relevant head contractor. Indeed, it is very likely that the head contractors would strenuously resist such a claim and that the husband would almost certainly have to resort to litigation to seek redress.
77I am well aware that the wife firmly believes that the alleged unpaid superannuation is "there for the asking", as it were. Regrettably, the evidence suggests otherwise.
Parties' current circumstances
78Both parties are currently unemployed.
79The wife said that she proposes to return to her country of origin in the near future. She has held a garage sale and given some items to one of her daughters. As will soon become apparent, her liabilities exceed her assets.
80The husband says that he has been unemployed since November 2014, although he has done some casual work after that time. He cites health reasons (relevantly, a hernia operation that he underwent in 2006) for his inability to work at the present time. He accepts that he is capable of working, but his future earning capacity is less than clear. He is presently receiving a Newstart Allowance from the Department of Human Services.
81The husband gave evidence to the effect that he is meeting his mutual obligation requirements in order to continue to receive the Newstart Allowance. In other words, and given that he is older than 55, I assume that he is doing at least 30 hours per fortnight of suitable paid work, self-employment, approved voluntary work or a combination of these things
82According to the husband, Ms C receives a Carer Allowance from the Department of Human Services. He said that she provides care for a dependent daughter with a disability or medical condition. The daughter ([M]) does not live with the husband and Ms C. It would appear to be the case, therefore, that Ms C provides the care in M's home (which is nearby).
Orders sought
83The wife filed a minute on 14 May 2015, setting out the orders she sought. There is no need to reproduce the minute, because it became clear at trial that the only orders actually sought by the wife were to the effect that moneys allegedly available to the husband in the form of unpaid superannuation benefits should be divided equally between the husband and herself. Put another way, the wife was arguing that the proceedings should be adjourned because there is likely to be a significant change in the financial circumstances of the parties if the husband exercises what she asserts is his incontestable right to receive the benefit of a significant amount of money in the form of unpaid superannuation benefits. The prospect of an adjournment is relevant under s 79(5) – to which I shall return later in these Reasons
84The only orders sought by the husband at trial were to the effect that there should be no further alteration of property interests.
Property settlement
85The following generic summary of the law is based on similar summaries in my decisions in Dekker & Dekker [2014] FCWA 61 and Fitzgerald-Stevens & Leslighter [2015] FCWA 25. I acknowledge, however, Thackray CJ's references to the former decision in Fielding & Nichol [2014] FCWA 77.
Approach prior to the decision of the High Court in Stanford v Stanford (2012) 247 CLR 108
86Until the decision of the High Court in Stanford v Stanford (2012) 247 CLR 108, the Full Court had consistently ruled that the general approach to a property settlement application was settled. The first "step" or "stage" was for the Court to identify the property of the parties. It was then required to attribute a value to each item of property – usually as at the date of the hearing. Thereafter, it assessed the extent of each party's contributions under the various sub-headings described in s 79(4). Finally, the Court considered the financial resources, means and needs of the parties, and the other matters set out in s 75(2) so far as they were relevant. An adjustment of the amount due to each party by way of contribution was then made by reference to the s 75(2) factors. It was not essential, however, that such an adjustment take place. Generally speaking, an adjustment was made because one party had greater needs and the other had stronger means.
87In relation to the contributions of the parties under s 79(4) generally, it had been held that a "global" approach would usually be more convenient than an "asset by asset" approach – although the application of an asset by asset approach does not (of itself) amount to an error of law: see Norbis v Norbis (1986) 161 CLR 513.
88The s 75(2) factors were considered to be directly or indirectly related to the process of arriving at a just and equitable result. It followed that there could be circumstances in which the justice and equity of the case, and the specific provisions of s 75(2), supported an adjustment in a party's favour for matters which could not be described comfortably as being of financial or economic significance: see McMahon & McMahon (1995) FLC 92-606 at p 82,043.
89It had also been held that, under s 79(2), the Court was required to be satisfied that the property settlement orders that it proposed to make were just and equitable – and not simply that the underlying percentage division of the net value of the parties' property was appropriate. In other words, in the consideration of whether the overall result of property settlement proceedings was just and equitable, it was the justice and equity of the actual orders, and not of the percentage distribution, which had to be considered: see Russell v Russell (1999) FLC 92-877.
90The overall process to be applied in property settlement cases was summarised by the Full Court in Hickey & Hickey & Attorney-General for the Commonwealth of Australia (Intervener) (2003) FLC 93-143, where their Honours said at [39]:
The case law reveals that there is a preferred approach to the determination of an application brought pursuant to the provisions of s.79. That approach involves four inter-related steps. Firstly, the court should make findings as to the identity and value of the property, liabilities and financial resources of the parties at the date of the hearing. Secondly, the court should identify and assess the contributions of the parties within the meaning of ss.79(4)(a), (b) and (c) and determine the contribution based entitlements of the parties expressed as a percentage of the net value of the property of the parties. Thirdly, the court should identify and assess the relevant matters referred to in ss.79(4)(d), (e), (f) and (g), including, because of s.79(4)(e), the matters referred to in section 75(2) so far as they are relevant and determine the adjustment (if any) that should be made to the contribution based entitlements of the parties established at step two. Fourthly, the court should consider the effect of those findings and determination and resolve what order is just and equitable in all the circumstances of the case…
91My view was that the testing of any proposed orders by reference to s 79(2) was never a fourth substantive step (properly so called) in the property settlement exercise: see OSF & OJK (2004) FLC 93-191; see also B & B [2006] FamCA 883 at [105] and [106], Manolis & Manolis (No. 2) [2011] FamCAFC 105 at [65] and [66] and Bonacci & Bonacci [2012] FamCAFC 15, where the Full Court said at [61]:
…[The] Full Court has said on a number of occasions the so-called fourth step is not an opportunity to make a further adjustment; it is an opportunity for the judicial officer to determine finally how, in reality, a just and equitable order might be achieved based on the circumstances of the case before him or her ... (References omitted).
92At the end of the day, though, and in the majority of cases, the precise nature of the final "step" or "stage" in the property settlement exercise may not have been of any real significance. It is enough to record that the process involved the Court metaphorically "stepping back" to consider whether the proposed orders (arrived at after the application of the first three steps described in Hickey (supra)) were just and equitable.
Stanford v Stanford (2012) 247 CLR 108
93In Stanford v Stanford (supra) ("Stanford"), the High Court challenged the validity of approach described above.
94The High Court emphasised that the provisions of s 79 empower the Court to make orders "altering the interests of the parties to the marriage in [their] property" (although the proceedings are described as relating to "property settlement"). As a result, it is essential to begin consideration of whether it is just and equitable to make a property settlement order "by identifying, according to ordinary common law and equitable principles, the existing legal and equitable interests of the parties in [the property available for distribution between them]": see Stanford at [37].
95Of particular importance are [35] to [46] of the plurality decision in Stanford (under the heading The operation of section 79), in which it was emphasised that:
... the requirements of [s 79(2) and s 79(4)] are not to be conflated. In every case in which a property settlement order under s 79 is sought, it is necessary to satisfy the court that, in all the circumstances, it is just and equitable to make the order.
96The plurality then spoke of "three fundamental propositions" that adhere to the power to make property orders under s 79:
(a)The first "step" (as was previously the case) is to identify "... according to ordinary common law and equitable principles, the existing legal and equitable interests of the parties in the property." The interest of parties in property cannot be altered unless their existing legal and equitable interests in the property can be identified.
(b)Although the court has a very broad power to make orders in relation to property, "it is not a power that is to be exercised according to an unguided judicial discretion". The judicial discretion must be exercised in accordance with legal principles – including the principles which appear within the Family Law Act itself. Further, "because the power to make a property settlement order is not to be exercised in an unprincipled fashion, whether it is 'just and equitable' to make the order is not to be answered by assuming that the parties' rights to or interests in marital property are or should be different from those that then exist": see Stanford at [39].
(c)The question presented by s 79 is whether those rights and interests should be altered.
97The consideration of the various factors in s 79(4) (including the parties' contributions in all their various guises) does not give rise automatically to a right on the part of one or other of the parties to have the property divided between them by reference to those factors. The just and equitable requirement in s 79(2) must also be considered and applied. Thus: "to conclude that making an order is 'just and equitable' only because of and by reference to various matters in s 79(4), without a separate consideration of s 79(2), would be to conflate the statutory requirements and ignore the principles laid down by the [FLA]".
98After referring to the above three propositions, the plurality in Stanford explained at [42] that – in the vast majority of cases – the requirements of s 79(2) are fairly easily satisfied:
In many cases where an application is made for a property settlement order, the just and equitable requirement is readily satisfied by observing that, as the result of a choice made by one or both of the parties, the husband and wife are no longer living in a marital relationship. It will be just and equitable to make a property settlement order in such a case because there is not and will not thereafter be the common use of property by the husband and wife. No less importantly, the express and implicit assumptions that underpinned the existing property arrangements have been brought to an end by the voluntary severance of the mutuality of the marital relationship. That is, any express or implicit assumption that the parties may have made to the effect that existing arrangements of marital property interests were sufficient or appropriate during the continuance of their marital relationship is brought to an end with the ending of the marital relationship. And the assumption that any adjustment to those interests could be effected consensually as needed or desired is also brought to an end. Hence it will be just and equitable that the court make a property settlement order. What order, if any, should then be made is determined by applying s 79(4).
Summary of current position
99The Full Court has taken the opportunity to discuss the decision in Stanford and what had previously been described as "the four step process" (or, perhaps, "the three step process") in a number of comparatively recent decisions, including Bevan & Bevan [2013] FamCAFC 116, Chapman & Chapman [2014] FamCAFC 91 and Scott & Danton [2014] FamCAFC 203. Indeed, in Keehan & Keehan [2015] FamCAFC 122, Murphy J (with whom Tree J agreed) said at [118] that the Court's power under s 79 is "not confined by any 'steps' or 'stages', nor is it exhausted by reason of the consideration of any or all of the so-called 'steps' or 'stages'". Ainslie Wallace J (with whom Tree J also agreed) reached a similar conclusion at [84]. Their Honours emphasised, however, that a departure from a process involving steps or stages could lead to the possibility of "double counting".
100I recognise that I am bound by the Full Court's explanation of the operation of s 79 and acknowledge that it has ruled in the decisions referred to above that:
(a)it would be a "fundamental misunderstanding" to read Stanford as suggesting that the matters referred to in s 79(4) must be ignored in determining whether it is just and equitable to make an order altering property interests;
(b)on the other hand, a consideration of the s 79(4) matters is not mandatory in answering the s 79(2) question;
(c)the just and equitable requirement is not "a threshold issue, but rather one permeating the entire process"; and
(d)while the s 79(2) and s 79(4) issues must not be conflated, "they are intertwined because the text of the [FLA] links them".
101I respectfully agree with Thackray CJ in Fielding & Nichol (supra) at [33] that the effect of the Full Court's analyses of the operation of s 79 is that "it is open to a trial judge, in addressing the s 79(2) question, to consider matters that may be seen as arising under s 79(4), but consideration of those matters is by no means conclusive in determining whether the 'just and equitable' test has been met".
102As discussed in my decision in Fitzgerald-Stevens & Leslighter (supra), and assuming a "step" or "stage" based approach to the determination of an application brought pursuant to the provisions of s 79 (which I shall call "the property settlement exercise") is still appropriate, my view is that a pragmatic and principled approach to the determination of such an application is as follows:
(a)The first step in the property settlement exercise is to identify, according to ordinary common law and equitable principles, the existing legal and equitable interests of the parties in their property.
(b)The second step involves ascertaining whether it is just and equitable – within the meaning and contemplation of 79(2) – to make an order altering the interests of the parties in their property. In most cases (relevantly, where the parties have separated and are no longer living in a marital relationship) the underlying assumptions that the parties had to the effect that the existing property ownership arrangements were functional (or perhaps irrelevant) and could be varied by agreement between them, no longer apply. That fact alone should ordinarily persuade the Court that it is just and equitable to make orders altering the parties' interests in their property. It is only after the Court has concluded that it is just and equitable to make such orders that it should proceed to take what might be regarded as the third and fourth steps.
(c)In the course of ascertaining whether it is just and equitable to make an order altering the interests of the parties in their property (in other words, during the second step described above), it is legitimate to consider the contributions of the parties in all their various guises, but consideration of those matters at this stage of the property settlement exercise is not obligatory; still less is that consideration conclusive in determining whether "the 'just and equitable' test" has been met.
(d)I note, however, that the Full Court said in Hearne & Hearne [2015] FamCAFC 178 at [71] that satisfaction of this requirement "can be inferred, at least in part, from the issues joined, and importantly, not joined, between the parties" and that "there need not be an express finding that the hurdle of s 79(2) has been overcome; it can be by necessary implication from the totality of the trial judge’s reasons for judgment".
(e)In the third step, the Court should identify and assess the contributions of the parties within the meaning of ss 79(4)(a), (b) and (c), and determine their contribution-based entitlements.
(f)In the fourth step, the Court should identify and assess the relevant matters referred to in ss 79(4)(d), (e), (f) and (g) – including, because of s 79(4)(e), the matters referred to in s 75(2) so far as they are relevant – and determine the adjustment (if any) that should be made to the contribution based entitlements of the parties established as a consequence of the previous step.
(g)Finally, the Court should consider the effect of the various findings and assessments it has made and make such orders as it considers are just and equitable in all the circumstances. As I have recorded above, my view is that this process does not amount to an opportunity to make a further substantive "adjustment"; it is an opportunity for the Court to determine finally how, in reality, just and equitable orders might be achieved having regard to all the circumstances of the case. I acknowledge, however, that the Full Court appears to have taken a different view in Keehan & Keehan (supra). Although the argument may well be sterile, I remain troubled by the considerations to which I referred in OSF & OJK (supra) at [26] and [27] and prefer the approach recognised in the passages from Manolis & Manolis (No. 2) (supra) cited by Ainslie Wallace J in Keehan & Keehan (supra) at [83] – namely, that any discomfort felt by a trial judge as to the justice and equity of a proposed outcome should result in a revisiting of the matters taken into account (or perhaps overlooked) during the "steps" or "stages" embarked upon in order to reach that proposed outcome, and the weight to be given to those matters.
(h)Throughout the process described above, the Court must bear in mind that the "just and equitable requirement" – to use the words appearing in the heading to s 79(2) – is neither "a threshold issue" nor some sort of "factor" to be considered wholly within one or more of the steps or stages referred to. Instead, it pervades and informs the entire process.
Full and frank disclosure
103There can be no doubt that both parties have a clear obligation to make full and frank disclosure of their financial circumstances in a timely manner: see Reichstein & Reichstein (2006) FamCA 1422 at [80].
104The duty to make full and frank disclosure of one's financial position has been set out in a number of cases determined by the Full Court over the years. Those cases were summarised in Chang v Su (2002) FLC 93-117. Full and frank disclosure is required as a matter of principle in proceedings between spouses or former spouses under the FLA (see, for example, Oriolo & Oriolo (1985) FLC 91-653, Briese & Briese (1986) FLC 91-715 and Giunti & Giunti (1986) FLC 91-759). Where the Court cannot be satisfied as to the extent of a party's property, it can be less cautious than might otherwise be the case when making relevant orders (see Mezzacappa & Mezzacappa (1987) FLC 91-853, Black & Kellner (1992) FLC 92-287 and Weir& Weir (1993) FLC 92-338).
105The authorities referred to above reveal that a judicial officer is entitled to take a "robust view" in relation to findings regarding a party's financial position (including a party's capacity to meet any proposed order) where that party has failed to make full and frank disclosure of his/her financial position: see Chang v Su (supra) at paras [71] and [72].
106In November 2002, the High Court dismissed an application by the husband in Chang v Su (supra) seeking special leave to appeal from the Full Court's decision. In the course of argument, Callinan J observed:
It does not matter what the principle might be seen to be, a Court has to do the best it can. It does the best it can, having regard to the evidence that is adduced, and if the parties are not frank then naturally there is going to be a measure of imprecision about any findings that the Court can make.
107In K & K (2002) FamCA 1150 (reported in (2003) FLC 93-135 – but not as to this issue) – the Full Court said at [50] and [51]:
(It was submitted that certain cases discussed in the judgment) were authority for the proposition that where there was a finding of deliberate non-disclosure the Court could act more robustly in making findings adverse to the party who had actively misled it. We do not see that the principle should be so confined.
Whether the non-disclosure is wilful or accidental, or is a result of misfeasance, or malfeasance or nonfeasance, is beside the point. The duty to disclose is absolute. Where the Court is satisfied that the whole truth has not come out it might readily conclude the asset pool is greater than demonstrated. In those circumstances, it may be appropriate to err on the side of generosity to the party who might otherwise be seem to be disadvantaged by the lack of complete candour…
108In spite of my findings regarding the wife's credibility, I am satisfied that she went to great lengths to attempt to inform herself of the husband's financial activities after separation. I accept her evidence in that regard, and find that the husband's disclosure in relation to that subject was piecemeal, delayed and generally inadequate. Relevantly, the husband's disclosure regarding the financial circumstances of his cohabitation with Ms C was deficient. I am satisfied that it is appropriate to take what might be considered a robust view in relation to findings regarding the husband's financial position and, if necessary, to err on the side of generosity to the wife (who is the party that would otherwise be disadvantaged by the husband's lack of candour).
109Having said that, I also accept that the wife provided inadequate information regarding her gambling losses over the years and the fate of the significant moneys earned by the husband during the parties' cohabitation and entrusted to her. I find that the wife was so focused on the husband's deficiencies as a litigant that she failed to give adequate attention to her own obligations to provide full and frank disclosure. The sad reality is that both parties fell far short of their obligations to assist the Court to fully understand issues relevant to the property settlement exercise and to enable the trial judge to make orders which are just and equitable. Each party's case was mismanaged and shambolic – partly by design and partly because of the parties' lack of legal representation, but also because of the wife's preoccupation with the circumstances surrounding the breakdown of the marriage (and the husband's relationship with Ms C) and the husband's laissez-faire attitude to financial matters generally.
Property and liabilities at the date of trial
110The first step in the property settlement exercise relates to the identification and valuation of the property of the parties at trial. It includes the identification, according to ordinary common law and equitable principles, of the existing legal and equitable interests of the parties in their property.
111Subject to comments to be made later in these Reasons, I find that the parties' property and liabilities (as at the date of trial) are as set out and identified in the following schedule, which I shall call "the property schedule".
| Property Schedule | |||
| A. | Husband's property | ||
| 1 | ANZ Account | ($250) | |
| 2 | Box Trailer | $150 | |
| 3 | Furniture, chattels and effects | $1,000 | |
| 4 | Liability to the Australian Taxation Office | ($12,000) | |
| 5 | Liability in respect of (now discharged) Bankruptcy | ($17,000) | |
| 6 | Liability to previous solicitors (Clement & Co) | ($13,000) | |
| 7 | Entitlements pursuant to SunSuper Superannuation Plan | $45,000 | |
| Husband's net property: | $3,900 | ||
| B. | Wife's property | ||
| 8 | St George Bank account | $4 | |
| 9 | Wife's motor vehicle | $1,500 | |
| 10 | Furniture, chattels and effects | $2,000 | |
| 11 | [Engineering] equipment | $1,000 | |
| 12 | Miscellaneous superannuation entitlements | $600 | |
| 13 | Liability to Telstra | ($6,000) | |
| Wife's net property: | ($896) | ||
| Parties' combined net property: | $3,004 | ||
112It can be seen from the property schedule that the total net value of the parties' property is $3004 – of which $45,000 comprises the current value of the husband's superannuation entitlements and $600 comprises the current value of the wife's superannuation entitlements. The parties' significant liabilities have the effect of reducing the net value of the available property to the meagre net amount referred to in the property schedule.
113It was not in dispute that the parties' superannuation entitlements should be included in the property schedule, being the property ultimately available for distribution between them. In other words, neither party suggested that superannuation should be included in a separate list, to be treated differently from the remaining items of property: see C & C (2005) FLC 93-220 at [63]. Further, there was no suggestion that the parties' contributions to their superannuation interests should be treated or assessed any differently to their contributions to other items of property. In other words, and to this extent at least, a "global" approach was adopted.
Composition of the property schedule – disputed items or items requiring an explanation
114The items contained in the property schedule were agreed at trial.
115In reality, there is no or virtually no property realistically available for distribution between the parties. The parties accepted this state of affairs. The wife argued, however, that, in effect, the husband's potential claim for unpaid superannuation contributions amounted to a chose in action and, as such, should be regarded as property for the purpose of the property settlement exercise. Indeed, she argued that she should be entitled to half of the unpaid superannuation contributions because they were or should have been generated while the parties were still cohabiting. Her argument in this regard wholly ignored considerations relating to the parties' respective contributions during that period and subsequently, and the application of any relevant s 75(2) factors.
116For the sake of convenience, I shall refer to the husband's potential or alleged claim for unpaid superannuation contributions as "the Superannuation Claim".
117The starting point for the Court's consideration of the wife's claim, therefore, must involve a discussion of whether the Superannuation Claim comprises a chose in action.
Chose in action
118In Loxton v Moir (1914)18 CLR 360, Rich J said at 379
The phrase chose in action is used in different senses, but its primary sense is that of a right enforceable by an action. It may also be used to describe the right of action itself, when considered as part of the property of the person entitled to sue. A right to sue for a sum of money is a chose in action, and it is a proprietary right.
192In Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175, the High Court held, in effect, that the injustice principle does not "trump" the court resources principle. For example, French CJ said at [5]:
… whatever costs are ordered, there is an irreparable element of unfair prejudice in unnecessarily delaying proceedings.… [The] time of the court is a publicly funded resource. Inefficiencies in the use of that resource, arising from the vacation or adjournment of trials, are to be taken into account. So too is the need to maintain public confidence in the judicial system.
193His Honour added at [30]:
It might be thought a truism that "case management principles" should not supplant the objective of doing justice between the parties according to law. Accepting that proposition, [there is no authority] for the view that waste of public resources and undue delay, with the concomitant strain and uncertainty imposed on litigants, should not be taken into account in the exercise of interlocutory discretions [such as those associated with the determination of an application for adjournment]. Also to be considered is the potential for loss of public confidence in the legal system which arises where a court is seen to accede to applications made without adequate explanation or justification, whether they be for adjournment, for amendments giving rise to adjournment, or for vacation of fixed trial dates resulting in the resetting of interlocutory processes.
194The majority of the High Court in Aon Risk Services Australia Ltd v Australian National University (supra) (Gummow, Hayne, Crennan, Kiefel and Bell JJ) were of a similar view. For example, their Honours said at [112]-[113] (emphasis in original, footnotes omitted):
A party has the right to bring proceedings. Parties have choices as to what claims are to be made and how they are to be framed. But limits will be placed upon their ability to effect changes to their pleadings, particularly if litigation is advanced. That is why, in seeking the just resolution of the dispute, reference is made to parties having a sufficient opportunity to identify the issues they seek to agitate.
In the past it has been left largely to the parties to prepare for trial and to seek the court’s assistance as required. Those times are long gone. The allocation of power, between litigants and the courts arises from tradition and from principle and policy. It is recognised by the courts that the resolution of disputes serves the public as a whole, not merely the parties to the proceedings.
195I am well aware that both parties are unrepresented, and that the wife strongly believes that the husband has an entitlement to the alleged unpaid superannuation contributions. On the evidence currently before the Court, however, I am unable to conclude that he does. In my opinion, the dispute between the parties must be resolved as soon as possible. I am not satisfied that an adjournment would serve the interests of the parties, let alone the public as a whole. I gave consideration to adjourning the proceedings to enable the appointment of a single expert for the purpose of investigating and reporting on the Superannuation Claim. It became clear, however, that neither party has the capacity to meet the likely costs for a single expert. It is not the Court's obligation to meet such an expense in the circumstances of the present case. To use a colloquialism, it would amount to throwing good money after bad (for both the parties and the Court).
196In all the circumstances, I am satisfied that neither the injustice principle nor the court resources principle fairly supports a conclusion to the effect that the proceedings should be adjourned.
Orders
197For the reasons given above, I am firmly of the view that the wife's application must be dismissed.
198In the unlikely event that the husband sees fit to endeavour to claim the alleged unpaid superannuation contributions, he should give the wife notice of his intention in this regard, and keep her advised of the progress of the claim. Should the claim bear fruit, or be likely to bear fruit, the Court may, in its discretion, set aside the order dismissing the wife's application for property settlement and, if it considers appropriate, make another order under s 79. It is at least arguable that, in such circumstances, the Court would be satisfied that there has been a miscarriage of justice by reason of "any other circumstance": see s 79A(1)(a).
199If the husband were to ignore the orders set out below (by, for example, failing to inform the wife of a proposed claim for the alleged unpaid superannuation contributions), it is arguable that the Court would be satisfied that the issue of property settlement should be revisited pursuant to the provisions of s 79A(1)(c).
200I propose to make the following orders:
(1) All extant applications for property settlement be dismissed.
(2)Notwithstanding (1) above, and unless the husband has given the wife not less than 28 days' notice in writing of his intention or proposal so to do, the husband, his servants and agents be restrained by injunction from –
(a)making or lodging any claim, demand, request or application;
(b)commencing or continuing any legal proceedings or conciliation, arbitration or other dispute resolution process;
(c)receiving any payment or other moneys; and
(d)signing any documents or doing any acts or things which could cause any other person or entity (other than the wife) to receive any payment or other moneys,
relating to or arising out of any alleged non-payment of superannuation contributions or other superannuation entitlements to or for the benefit of the husband, his servants and agents as a result of work done by the husband (either personally or directly or indirectly through a company, partnership or trust) at any time between 1 January 2004 and 31 December 2010 ("the superannuation claim").
(3)The husband, his servants and agents must keep the wife fully advised, at all times, of all aspects of the progress of the superannuation claim and must forthwith sign all such documents and do all such acts and things as shall be necessary to cause, authorise and permit the wife to receive copies of all correspondence and other documents relating to or arising out of the superannuation claim (or, if more than one, the superannuation claims) forthwith upon such correspondence and other documents being sent or received.
(4) All extant applications otherwise be dismissed.
I certify that the preceding [200] paragraphs are a true copy of the reasons for
judgment delivered by this Honourable Court
Associate
13 November 2015
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