FORSTER & FORSTER

[2015] FamCA 57

FAMILY COURT OF AUSTRALIA

FORSTER & FORSTER [2015] FamCA 57

FAMILY LAW – PROPERTY – Third property hearing following a long history of litigation – issues as to credit – issues as to add-backs and liabilities – evaluation of past contributions and future needs – how to treat the husband’s entitlement to a United States government agency pension

Family Law Act 1975 (Cth) ss 75(2), 79(2), 79(4)

Stanford v Stanford [2012] HCA 52, (2012) 293 ALR 70

Bevan & Bevan (2013) FLC 93-545
Chapman and Chapman [2014] FamCAFC 91

APPLICANT: Ms Forster

RESPONDENT: Mr Forster

FILE NUMBER: ADC 2007 3359 of

DATE DELIVERED: 10 February 2015

PLACE DELIVERED: Hobart

PLACE HEARD: Adelaide

JUDGMENT OF: Benjamin J

HEARING DATE: 15, 16, 17, 18, 19 and 26 September 2014

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mrs West

SOLICITOR FOR THE APPLICANT: Catherine Hicks

COUNSEL FOR THE RESPONDENT: Mr Finlayson (solicitor) for the first half of day one and thereafter the respondent in person

SOLICITOR FOR THE RESPONDENT:

Orders

1. These Orders are by way of full and final settlement of the parties’ respective claims for settlement and/or adjustment of property under Part VIII of the Family Law Act 1975 (‘the Act’).

2. Within sixty days (60) from the date of this Order Mr Forster (‘the husband’) shall pay to Ms Forster (‘the wife’) the sum of $151,379.50.

3. Subject to these Orders; as between the husband and the wife it is declared that the following property is the wife’s property;

   3.1the proceeds of sale of P Street, Suburb N property previously held in interest bearing account with CBA Netbank Saver in the wife’s name,

   3.2the wife’s interest in property I Street, Suburb A (owned by wife jointly with Mr E),

   3.3the wife’s savings and investments held in any bank accounts in her name,

   3.4the wife’s interest in and entitlements in her F Superannuation Fund, and  

   3.5the wife’s chattels and personal effects in her possession and/or control.

4. Subject to these Orders; as between the husband and the wife it is declared that the following is the husband’s property;

   4.1the husband’s interest in any of the bank accounts in his name including all bank accounts in the United States and/or Australia,

   4.2the husband’s Pontiac and Toyota motor vehicles and his camper van,

   4.3the husband’s chattels and personal effects in his possession or control,

   4.4the husband’s entitlements to his Government Agency Pension Fund and/or other entitlements arising from his employment with the United States government agency;

   4.5the amount payable to the husband and the wife or either of them pursuant to any satisfaction of judgment in the following actions in the United States District Court Civil Number … and Civil Number … and a CONSEQUENTIAL ORDER that the husband shall indemnify the wife and hold the wife indemnified in respect to any costs or other liabilities arising out of the conduct of any litigation in the United States by the husband whether on his own behalf or on behalf of himself and the wife being any action instituted at the present time.

5. Within six weeks from the date of this Order the husband shall forward to the wife’s solicitors (if in paper form) or otherwise permanently delete (if in electronic form) the original and copies of all and any medical records and powers of attorney that he has in his possession or control as to the wife’s psychiatric or psychological condition (including copies and/or originals of the records contained in pages 10 to 25 of Exhibit W8 in these proceedings),

6. Within six weeks from the date of this Order the wife shall forward to the office of the Consulate General of the United States 553 St. Kilda Road Melbourne Victoria 3000 the original/s of her or any of her United States Government Agency Identification Card/s in the wife’s possession or control.

7. All extant applications (except costs applications) are otherwise dismissed.

8. Any application for costs of all or part of the first instance proceedings (and including any reserved costs not otherwise dealt with in these proceedings) to be made in accordance with the Family Law Rules 2004 (Cth).

9. Following the expiration of the appeal period, all subpoenaed documents (except for the parties’ case summaries and expert reports) shall be returned to the persons or institutions from which they emanated and all exhibits are returned to the person or persons who tendered the same.

IT IS CERTIFIED

1. Pursuant to Rule 19.50 of the Family Law Rules 2004 (Cth) it was reasonable to engage counsel to attend.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Forster and Forster has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT ADELAIDE

FILE NUMBER: ADC: 3359 OF 2007

Ms Forster

Applicant

And

Mr Forster

Respondent

REASONS FOR JUDGMENT

INTRODUCTION

1. This case is an extreme example of deep-seated conflict flowing from the failure of a marriage.  The seeds of that relationship breakdown have grown into a cancer of conflict that has so far defied resolution.

2. Ms Forster (“the wife”) and Mr Forster (“the husband”) have been engaged in constant family law proceedings since June 2007, a period of seven and a half years.  The wealth they had worked hard to create, both jointly and individually, over the best part of their working lives has been decimated by this fight.

3. Twice final property orders have been made, first in 2010 in the then Federal Magistrates Court and the second in 2013 in the Family Court.  Twice the appeal mechanisms have set aside those final orders.  Akin to the ancient Indian board game ‘snakes and ladders’, the parties are back to where they commenced; now it is my turn!

4. These parties, or one or other of them, have been unable or unwilling to find their own solutions and have been unwilling to accept decisions of courts.

5. In September 2014 it became my task to hear and determine this conflict and I did so over six full days of hearing the evidence and the submissions.  These are my reasons.

6. When relationships fail there are often periods of denial, disbelief and distress.  People in these circumstances sometimes suffer a deep sense of loss and disconnection, many are afflicted by anger and sometimes people create or endure violence.  Most people recover from the ending of a relationship, but the long term impacts vary with each individual.  With support by family and friends, most people manage to pass through the transient hardships and, when children are involved, parents generally re-establish some form of communication and new and different relationships.  

7. This has not been the outcome for these particular parties.  For them, their now adult children and their broader families, the end of this conflict must seem further away in 2015 than it was in 2007.  

8. The husband and wife have endured another trial which raked over the cold embers of their long marriage and the smouldering embers of heat that represent their years of litigation.  Their conflict, anger, antipathy and mutual distrust has not dissipated; it has grown and matured into a life of its own.  It is in that context that this determination is made.

9. For what it is worth, I urge the husband and the wife to accept this decision and spare themselves, their children, their families and the remnants of their wealth from the emotional and financial ravages of further litigation.

THE ISSUES

1. There is no issue between the parties that the Court should exercise its powers to make some form of property orders between these parties, it is question of what orders ought be made.  Given the evidence before me I accept that orders ought to be made.

2. The issues between the parties include:-

   1.The duration of the relationship.  In his case outline[1] the husband asserted the parties lived apart from 1999 although it is not clear from his evidence as to the precise date of separation, the wife asserted that separation occurred on 17 May 2007;

   [1] Exhibit H9.

   2.Whether each of the parties has made full and frank financial disclosure;

   3.The extent of the property owned or controlled by the parties, including:-

   i)The nature of the husband’s government agency pension and/or entitlements arising from his long employment in the United States government agency. This includes whether it is property, a financial resource or otherwise, and what this Court should make of it in relation to proceedings under Part VIII of the Family Law Act 1975 (‘the Act’).

   ii)The husband’s contention is that since 1999 the wife has taken or had the benefit of about $600,000 including the proceeds of sale of P Street, Suburb N (‘P Street’).  The husband says that the proceeds of sale ought to be ordered back into a trust account and included in the pool of property to be divided between the parties.  The wife contends that the money she received from the sale of P Street was applied to payment of her legal costs of about $297,000 and should not be added back or treated as a waste given the history of litigation.

   iii)The nature, history and extent of the husband’s US Savings Bonds.  The husband disclosed[2] that he has US Savings Bonds of a total value of $309,444 (US) which he says has a value of $334,199 (AUS).  However, during the hearing the husband said at one time that the bonds no longer existed or were not property.

   [2] Financial statement of husband filed 9 September 2014 paragraph 38.

   iv)The husband claims an ‘add-back’ or allowance in respect of a payment out of the proceeds of sale of P Street, interim property and others to be included in the pool of property.

   4.Contributions including:-

   i)The initial contribution in terms of the husband, including his US Savings Bonds;

   ii)Financial and other contributions by the wife;

   iii)Contributions by the wife as to her role as parent and homemaker;

   iv)Various assertions as to waste of money, including alleged dissipation of money in respect of legal proceedings in the United States.

   v)Disposal of money and property after May 2007;   

   vi)Contribution allegedly made by the wife’s family, including providing accommodation for the wife since 1999, except between February 2006 and May 2007 when the wife lived in P Street and her father’s contribution to the cost of the paint and the painting of that house.

THE PARTIES’ POSITIONS

1. The result sought by the wife was relatively clear, she sought orders that:-

   1.The wife retain property in her possession including the proceeds of the sale of P Street, which she used primarily to pay her legal costs in this high conflict matter;

   2.The wife retain her interest in a property at Suburb A, which she jointly owns with her partner, Mr E;

   3.The wife retain her savings, bank accounts, her interest in F Superannuation Fund, and her chattels and personal effects;

   4.The husband retain any money in his name including all bank accounts in the United States and Australia, his Pontiac motor vehicle, his Toyota motor vehicle, chattels and personal effects in his possession, his United States Government Agency Pension Fund entitlements, and the proceeds pursuant to proceedings in the United States District Court Civil Number … and Civil Number …;

   5.the husband indemnify the wife in respect to any costs associated with or rising out of the conduct of any litigation on his own behalf and /or the wife in the United States, by the husband whether on his own behalf or on behalf of himself and the wife being any action instituted at the present time; and

   6.a sum of money to adjust the property of the parties on an equal basis.

2. In addition the wife sought orders requiring the husband to comply with various costs orders from November 2011 to February 2013 totalling $12,857.48.  I indicated to the parties that this was a matter of enforcement by the wife, if she so chooses, and was not a matter for further order.

3. In preparation for trial the parties were ordered to file a case outline prior to the commencement of the hearing.  This document was to set out details of the property, the orders that party was seeking, a chronology and outline of argument. 

4. The wife filed such a document shortly before the hearing started.  The husband did not comply with that direction prior to the commencement of hearing.

5. At the commencement of the hearing the husband was represented by a solicitor.  However, about mid-way through that first day of hearing the husband terminated his solicitor’s retainer and elected to represent himself.  Absent instructions, the husband’s solicitor could not continue to represent the husband and I granted leave to his erstwhile solicitor to withdraw from the proceedings.

6. As the hearing started the husband’s then solicitor informed me that he had prepared a case outline but claimed that it was rushed (given his late instructions) and said he would have it completed within a day or so.  I said that I wanted details of the orders that the husband sought and his version of the property pool by day two if not earlier, given that the wife was entitled to know the case that she faced.  It was sometime later that solicitor ceased to be involved.

7. As the husband had chosen to represent himself, I reminded him that I wanted his case outline at the commencement of day two of the trial.  At the start of day two of the trial, the husband was unable or unwilling to articulate either the precise orders that he sought or the pool of property.  He prevaricated in that regard.

8. On Thursday 18 September 2014 (being day four of the hearing) the wife’s case closed and I insisted that the husband outline his case and the orders he sought.  These were a short form of some of the orders the husband reflected in his final submissions.  The information provided on day four was that the husband sought orders:-

   ·    that within seven (7) days the wife place $415,000 into a trust account being the gross sale price of P Street;

   ·    that the wife place in a trust account the sum of $10,000 being the husband’s estimate of the value of the furniture sold by the parties; and

   ·    that the wife pay into the trust account the sum of $80,000 being the husband’s bank accounts which had been applied towards a payment to the wife in 2010 of $70,000 and the balance of $10,000.

9. In essence it seems the husband was seeking an add-back of $505,000 and payment to him of sixty five per cent of the $415,000, viz $269,750, one hundred per cent of the furniture and furnishings, a sum of $10,000 and one hundred per cent of the Australian savings of $80,000 apparently making a total payable to him from this added back sum of $359,750.  I am not confident of that arithmetic, but the generality is as outlined.  The husband sought that those sums be included in the pool of assets.  

10. The husband contended that the wife has undisclosed property in the form of US Treasury bonds to a value of between $10,000 and $15,000.  He seeks an order that the wife retains these bonds and pays him the difference between the value of the bonds and $5,000.  No objective evidence was adduced as to those bonds that the husband asserted were the property of the wife. On the husband’s case that would be a payment by the wife to him of between $5,000 and $10,000.  His explanation in relation to this was at times hard to follow and it may be that he was seeking an order that the wife pay him half of their value. 

11. The husband sought an order that the wife pay him $25,000 being part of the fees he paid to the American Attorney, Mr G in the early 2000’s. 

12. Further, he sought an order that the wife return her United States Government Agency Identification Card to him and a declaration that he retains ownership of his campervan, Toyota motor vehicle, tools and furniture and effects.

13. He sought an order that the wife be prevented from claiming against him for the fruits of any of litigation in the United States and some sort of indemnity in relation to that litigation. Despite requesting information it was not clear which he sought. 

14. The husband sought costs orders in relation to the reserved costs orders made by Registrar Paxton in August 2014 and general costs orders. In terms of the various costs applications it is clear that costs orders were made in favour of the wife pursuant to the then declared void property orders out of the then Federal Magistrates Court.  Given that there may be an argument as to the extent of the Courts’ power to make costs orders, in respect of the now void application for the appointment of a case guardian, I intend to make a general order enabling the parties to make costs applications in accordance with the rules following the publication of these reasons and the making of property orders.  I will not be reviewing costs orders which have been properly made.

15. The husband produced a written case outline the week after evidence concluded and on the day or the day before final submissions commenced.[3]

    [3] Exhibit H10.

16. When I heard final submissions, the husband sought orders contained in his amended case outline.  These are the orders I have considered in the context of these reasons.  At times it was unclear as to what precise orders that the husband sought, but as best I can interpret, they are:-[4]

    [4] Husband’s amended case outline filed 25 September 2014.

    1.[the] proceeds from the sale of [P Street] [of about $415,000.00] previously held in an interest bearing account in the wife’s name be immediately placed in a trust account pending full and complete property settlement disposition.

    2.[the] proceeds from the sale of the furniture [of about $1650.00] in from the [P Street] be deposited into an interest bearing account pending full and complete property settlement disposition.

    3.[the] proceeds seized from respondent’s Australian Bank Accounts [being $81,000] plus interest be placed into an interest bearing account pending disposition of full and complete final property settlement. 

    [The above three orders were presumably by way of positive injunction against the wife].

    4.[That in full and final settlement of the parties’ claim for settlement of property or property adjustment and in satisfaction of their respective entitlement under Part VIII of the Family Law Act;]

    a.That subject to these orders the husband retain free from any claim or demand of the wife all his estate and interest in the following assets in his ownership or control:-

    i.Eighty percent of the total proceeds ($415,000.00) that the wife acquired from sale of [P Street],

    ii.One hundred percent (100%) add backs [of the] husband’s funds expended for legal cost estimated at about $60-70,000.00,

    [I take this to be the husband’s estimate of his legal costs and that he expects this to be added back into the property pool - presumably against the interest due to the wife].

    iii.[the husband’s] Franklin trailer campervan and … Toyota [motor vehicle],

    iv.[the husband’s] tools, furniture, and personal effects currently in his possession,

    v.all of his savings and investments held in any bank account in his name and maintained in Australia,

    vi.all of his savings and investments held in any bank account in his name and maintained in the United States,

    vii.the amount the wife acquired from the husband’s Australian Bank accounts (In excess of $81,000.00) and consented to by the alleged litigation guardian is declared 100 percent ownership of the husband through loan from daughters, [Q] and [R],

    viii.the amount payable by the husband for any litigation in the United States whether on his behalf or on behalf both the [wife] and him, that [the husband] be indemnified by the wife per the agreement entered by, both, [the husband] and the wife in August 2004.

    ix.That the cost orders as described in para 1.4.1 thru (sic) 1.4.5 of the applicant be set aside pursuant to Judge Strickland’s Order 13 (sic) Aug 13 and the order of the Full Court of the Family Court that set aside the orders,

    [This is an application by the husband to set aside costs orders made previously in these proceedings including orders made by judicial officers which is ultra vires the power of a first instance judge of the Family Court. As such this order cannot be made. If those Orders have been overtly vacated or discharged I will consider appropriate costs applications in respect of first instance proceedings. The party making any such application will need to establish both jurisdiction and power.]

    x.That within fourteen days the [wife] do pay the husband such sums as is considered just and   equitable in the circumstances that the wife:

    -    misled the court about her contributions for purchase of [P Street].

    -    failed to report her accident settlement of $15,000.00

    -    failed to report control of [M’s] CWB account

    -    failed to provide discovery CWB financial statements periods of Nov 2007 to Jan 2009.

    -    failed to provide discovery for $15,000.00 paid to Solicitor Catherine Hicks disclosed, with counsel, US Savings bonds in her possession.

    [in terms of this order I take it that the husband seeks orders that he regards as ‘just and equitable’ given the husband’s contention that the wife has not made full and frank financial disclosure].

    5.That within fourteen days, the wife do indemnify the husband the amount of $25,000.00 as half cost the husband paid to [Mr G] on behalf of the applicant, then wife, in 2003-4.

    [This order relates to legal proceedings commenced by the husband and the wife in the United States]. 

    6.That the wife pay the husband’s cost of the interim hearing before Registrar Paxton on 12 August 2014 and reserved to the trial judge, and the cost of the final proceedings herein.

    [I have dealt with reserved costs in the orders in terms of preserving them pending any cost applications made in accordance with the Family Law Rules 2004 following the publication of these reasons and the making of the orders to which they refer.].

    7.Wife to return the [Government Agncy] Identification Card to husband.

BACKGROUND

1. In these reasons any statement of fact is to be regarded as a finding of fact unless the contrary is established from the context of the statement.

2. The husband was born in 1951 and is a citizen of the United States.  He is aged 63 years. He currently resides in Australia.  He joined a government agency in the United States in 1970 at the age of 19.  The husband resigned from the government agency between December 1999 and February 2000, having been employed there about twenty nine years.  The husband and wife were in a relationship for about ten years at that time.

3. Prior to the commencement of his relationship with the wife, the husband had been previously married and there are five children of that relationship. 

4. As to his circumstances the husband says in his trial affidavit[5]:-

   93.    I am presently 63 years old.  I am a retired [employee] from [a] United States [government agency].  My sole source of income is a pension that I receive from the United States [government agency], and technically is (sic) paid so that I might be [re-employed].  I receive the sum of $3,733 USD before tax per month.  [The wife] has inalienable rights under United States Law to seek a portion of the pension income.

   94.    I have served in [that] United States [government agency] for all of my working adult life.  I am unable to perform any other kind of work.  I am a United States Citizen, my son is in California and I may return there when all this is over.

   [5] Filed the 9 September 2014 at paragraphs 93 and 94.

5. The wife was born in Australia in 1968 and is now aged 46 years. 

6. The parties met in Hawaii in 1988 and married in Florida in February 1989, when the wife was aged 19 and the husband was aged 37.  The wife’s evidence is that she was dominated and controlled by the husband, at least in terms of decision-making. I accept that evidence.  The wife rarely challenged the husband in decision-making and was afraid to enquire into the finances which were controlled by the husband.  The wife asserted that throughout the marriage the husband made constant complaints to her about her alleged lack of fidelity to him.  The husband asserted that the wife was guilty of a lack of fidelity during the marriage.  This Court restricted the evidence in relation to this issue as it had little or no bearing on the adjustment of property.

7. The wife is presently employed as a part time healthcare worker and has a taxable income of about $30,000 per year.  The wife had a diagnosed mental disorder which is set out in her trial affidavit.[6]

   [6] Paragraphs 86 and 87 of the wife’s affidavit filed 20 May 2013 (‘wife’s trial affidavit’).

8. There are two children of their marriage: M now aged 24, and K now aged 19 (almost 20).

9. From the date of their marriage until 1999 the parties had a somewhat peripatetic existence.  They initially lived together in Virginia in the United States but in mid-1990 the husband was posted for employment in Central America.  The wife returned to Australia with M and lived with her parents from May 1990 until November 1991 (about 18 months).

10. There is an issue between the parties as to whether the wife went to Australia of her own volition, or whether she could have remained living in the United States, or whether she could have lived with the husband when he was in Central America. Little swings on the cause in terms of property, but the factual basis of the wife being in effect a sole parent being supported by her parents over this time is a factor to which I have had regard.  The wife worked part time in a supermarket whilst in Australia. 

11. The parties resumed living together in about January 1992 while the husband was posted to Washington State and the wife worked in a store.

12. In January 1993 or thereabouts the husband was posted to Texas to attend a training course and he attended and completed that course.  Over the time the husband was studying, the wife and M returned to live with the wife’s parents in Australia; this was from January 1993 until January 1994.  There was an issue between the parties about the circumstances surrounding the wife and M remaining in the United States or living with the wife’s parents in Australia.  Given the evidence, I am satisfied that decision was a mutual arrangement.  The husband attended the training course in the United States, and was significantly supported in this endeavour by the wife living with her parents.

13. I have had regard to those 18 month and one year periods of support by the wife’s family in terms of contribution. 

14. The parties re-commenced living together when the husband was posted to Kansas from January/February 1994. They remained at that location until November 1994.

15. In November 1994 the parties moved to the husband’s next posting, which was in Hawaii.  The parties lived together in Hawaii until the wife and two children moved to Australia in late 1999.

16. The parties’ second son, K was born in Hawaii in January 1995.  The wife claims, and I have accepted, that the parties discussed the husband retiring from his employment.  Between 1996 and 1997 the wife received psychiatric treatment.

17. In 1997 the husband was charged with work based offences, of which offence or offences the husband was eventually acquitted.

18. In October 1999 the wife and two children moved from Hawaii to Adelaide. Apart from three months in Hawaii in about 2003, the wife has lived permanently in Australia since that time.  She undertook paid domestic work from then until 2009.

19. The husband asserted separation in October 1999.  I did not accept his evidence of that alleged separation.  In his affidavit filed 23 July 2007 in the then Federal Magistrates Court[7] the husband’s evidence at paragraph 95, 98, 99 and 100 are indicative that the marriage continued well after the time that he asserted that it came to an end.  Similarly, the language of the husband in the letter he sent to the wife with regard to some funds towards the purchase of P Street[8] is that of a person who was in a continuing relationship.

    [7] Exhibit W17.

    [8] Exhibit H9 dated 16 February 2000.

20. I accept the wife’s evidence as to the date of separation.

21. After leaving the government agency from 2000 until 2007, the husband moved to and from Australia.  Most of the time he was in the United States, where he pursued litigation of various forms.

22. In 2000 and 2001 the husband arranged to ship the possessions of the parties from the United States to Australia.

23. In June 2000 the parties purchased a home at P Street in Adelaide (“P Street”).  The purchase price was $198,000 and the stamp duty was about $7,000 and the whole amount was financed by the parties.  The cost was about $204,000 and I find that most of that money for that purchase came from funds controlled or provided by the husband.

24. The wife said she had applied term deposits of $24,000 towards that purchase.  As to that pool of property, I am satisfied that a small part of this sum came from her earnings or entitlements accumulated during the marriage, but that the overwhelming majority of that sum came from funds provided by the husband.

25. Given the lack of objective evidence as to the funds of the husband at the commencement of the parties’ relationship it is likely that those sums were accumulated during the marriage.  I have had regard to this in terms of assessment of contribution.

26. The home was registered as to sixty five per cent in the name of the husband and thirty five per cent in the name of the wife.  The wife asserts that her family contributed $13,000 towards painting P Street.  That assertion was disputed by the husband.  I accept that $13,000 was provided by the wife’s family.  I also accept that the wife’s late father, a qualified painter, painted the home.

27. In late 2003 or 2004 the wife travelled to the United States at the husband’s request to give a deposition for legal proceedings in that country.  The wife was away for about three months and the parties’ children were cared for by the wife’s parents.

28. The husband was involved in a number of legal cases in the United States in various courts.  One of those actions involved the wife as a party.  The wife asserted that she and the husband kept in regular telephone contact over that period.  I accept that evidence.

29. Given the evidence of the wife and the objective circumstances surrounding the events from 1999 to 2007, and my earlier comments, I find that the parties separated on 17 May 2007. This was a contentious issue.  The objective evidence included the purchase of P Street, the wife executing a Power of Attorney in the husband’s favour in December 2003,[9] the signing of a legal fees agreement with Mr G (a US Attorney), the wife’s visit for three months to the United States in 2003 or 2004 where she stayed in a flat with the husband and assisted him in the litigation, the husband asking the wife to invest funds for him in the form of term deposits or similar investments with Westpac, ANZ and/or the Commonwealth Bank after 1999, that the parties cohabited at her parent’s home and then at P Street for a period of months on the wife’s evidence (October 2005 to early 2006).   

    [9] Exhibit H8 pages 28 to 32.

30. The wife asserted that in October 2005 the husband visited Australia and stayed with her at her parent’s home.  The wife claimed that she and the husband lived at P Street until May 2007.  The husband claimed that the parties were in essence separated but that the wife and children resided in the house.

31. The wife claimed that in May 2007 she was asked by the husband if she was having an affair.  She admitted that was the case and said the husband threatened her.  The wife said that she regarded the marriage as being over at that time.

32. The husband denies making threats to the wife and denies that he has engaged in any family violence.  There is no Kennon[10] argument in these proceedings.

    [10] Kennon v Kennon (1997) FLC 92-757; 22 Fam LR 1.

33. I accept the evidence of the wife as to the threats made to her in May 2007 and her immediate steps in complaining to the police in relation to those threats[11] and instructing solicitors to act for her in relation to family law proceedings as shown in the statement from the wife’s solicitor of 6 May 2008.[12]

    [11] Annexure A4 of wife’s trial affidavit.

    [12] Exhibit H8 AF 49 and 53.

34. I accept that at that time, 17 May 2007, the wife was afraid of the consequences of the failure of their marriage, which had been deteriorating over a number of years.

35. The wife commenced proceedings in respect of parenting and property in the then Federal Magistrates Court on 19 June 2007.  There has been constant litigation since that time.  As best I can I have set out the procedural history of the litigation between these parties.

36. After the proceedings commenced in mid-2007 they were listed for hearing in May 2008 in the then Federal Magistrates Court.  At that time the proceedings were adjourned for submissions.  In October 2008 the husband was ordered to attend for a psychiatric assessment.  He did not attend.  On 19 December 2008 an order was made for the appointment of a litigation guardian for the husband. 

37. A property trial was conducted in the then Federal Magistrates Court for two days in October 2009 where the husband was present and represented by a litigation guardian through Counsel.  That defended hearing adjourned part heard to 30 March 2010.  The husband did not attend Court on the 30 March 2010 hearing.

38. On 23 April 2010 final property orders were made; they provided that the husband retains P Street and that he pay to the wife the sum of $349,600.  He did not voluntarily pay that sum. 

39. In June 2010 enforcement orders were made for the sale of P Street.

40. In July 2010 the husband sought leave to appeal the appointment of his case guardian.  That leave was granted in September 2010.  The husband did not prosecute that appeal until he filed an outline of argument on 19 December 2011, a delay of about a year and a half.

41. On 1 October 2010 the property order was varied by consent to $329,600, apparently on the motion of the case guardian for the husband.  On the same day an order was made for a payment to the wife, by way of partial payment of property orders, of $70,000 being from the husband’s funds held in the wife’s solicitors trust account.

42. On 8 September 2011 the wife sought and obtained a warrant for possession of P Street.  That warrant was executed on 28 October 2011. 

43. On 6 December 2011 an order was made in the then Federal Magistrates Court that the husband pay the wife’s costs of the first instance proceedings of $40,000.

44. On 16 December 2011 an order was made in the then Federal Magistrates Court for removal of personal property from P Street to permit the sale of both the home and the chattels.  Those chattels were removed between 5 March 2012 and 13 March 2012.

45. On 19 March 2012, in the Federal Magistrates Court, there was an application made for a restraining order in relation to the removal of the furniture.  By that time the furniture and chattels had been removed.

46. Pursuant to the original enforcement orders, in early 2012 the home was put on the market and an offer was made to purchase the home in February 2012 for $430,000.  The husband was informed of that offer but did not respond to it. 

47. On 23 March 2012 the husband’s appeal to the Full Court in relation to the appointment of the case guardian in the then Federal Magistrates Court was allowed.  The question of the status of the 2010 property orders was unclear.  

48. In December 2011 the wife filed an application for divorce; the wife had difficulties serving the husband with that application.  He eventually filed a response, opposing the divorce order.[13]  In the hearing before me, the husband deposed that he was not opposing the divorce.  That evidence was wrong as the response made it clear that the husband opposed the granting of a divorce order. This evidence was a small part of my reasoning for having doubts about the general reliability of his evidence.

    [13]Exhibit W13.

49. The divorce application was heard by Dawe J on 30 November 2012; the divorce order was made together with an order for costs in favour of the wife.

50. On 9 November 2012 the wife made an application for the sale of P Street.  That application was granted by an order of the Court made by Dawe J, also on 30 November 2012.

51. A contract for sale of P Street was executed in December 2012.

52. On 19 December 2012 Strickland J, exercising the appellate jurisdiction of the Family Court, found that the property order made 23 April 2010 (varied on 1 October 2010) and the costs order made 6 December 2011 were voidable.  He did not vacate those property and costs orders, at that time.

53. The proceedings came back before Strickland J on 15 January 2013 (given his findings on 19 December 2012) and the Court gave leave to the wife to file fresh property proceedings.  She filed that fresh application 17 January 2013 together with an affidavit and financial statement.

54. On the following day the wife filed an application to enable the issue of a new title deed to enable the completion of the sale of P Street.  On 21 January 2013 Dessau J made procedural orders and on 23 January 2013, orders were made to enable the issue of a duplicate certificate of title.

55. The following day, 24 January 2013, the sale of P Street was completed and the sum of $404,822 was deposited into a trust account. 

56. The husband sought a stay of the orders to issue a duplicate certificate of title.  That stay application was dismissed.  It was not clear to me whether the stay application was made before or after the completion of the sale of P Street.

57. On 31 January 2013, on the wife’s application, Strickland J set aside the property orders made 23 April 2010 (varied 1 October 2010) and the $40,000 costs order made 6 December 2011 in the then Federal Magistrates Court.

58. The wife’s then first instance proceedings were referred for re-hearing to a judge of the Family Court.

59. The husband had lodged an appeal against a decision of Strickland J and that application with leave to appeal was dismissed on 21 June 2013.

60. On 23 August 2013 Strickland J made orders that the husband pay the wife’s costs of an appeal in the amount of $13,000.  It was not clear to me whether that costs order has been paid or remains unsatisfied.  Given the approach by the parties, little swings on that sum.  If it is unpaid it is an asset of the wife and a liability of the husband and ought not to be adjusted in the scope of this determination.  It will be open for the wife to seek enforcement. If it is paid then it is dealt with in the expenditure by the parties.

61. When the hearing came on before Cronin J in July 2013, the husband sought an adjournment of those proceedings.  The husband asserted that he had instructed a solicitor to appear for him at that hearing.  He believed that the trial was to be in Melbourne and said he had informed his solicitors of that circumstance.  Given the history of the proceedings and the lack of trust between the parties it was perhaps not unexpected that the wife would want the hearing to proceed and she opposed the adjournment.  The husband’s adjournment application was refused. 

62. On 1 and 2 July 2013 a trial was conducted before Cronin J, the husband did not participate.  The application was heard on an undefended basis and orders were made on 2 July 2013.  Pursuant to the orders of Cronin J the wife applied the sum of $297,000 towards the payment of her costs, the payment out of a loan to the Commonwealth Bank (being a loan to fund litigation from earlier times) and applied $70,000 of those funds towards the purchase the home at Suburb A with Mr E.

63. The husband lodged an appeal against the property orders made by Cronin J, and there were other appeals pending.

64. The appeal against the property orders was heard simultaneously with other appeals and application for leave to appeal lodged by the husband.  He had lodged a series of appeals from orders made on 30 November 2012, 23 January 2013, 31 January 2013, 28 March 2013 and the second final property orders made 2 July 2013.

65. Those appeals were heard together on 10 October 2013 and reasons published and orders made on 15 May 2014.[14]

    [14] Forster & Forster [2014] FamCAFC 88.

66. In relation to the appeal against the orders for the sale of P Street (in circumstances on the question of whether it was procedurally unfair or “an abuse” of discretion for orders to be made for such sale) the Full Court determined that there was no lack of procedural fairness, a miscarriage of discretion or inadequacy of reasons for the orders for sale, and further that leave to appeal could not be granted because the property had been sold to a bona fide purchaser.

67. In relation to the husband’s appeal against the costs orders in the divorce application, the Full Court found that the trial judge had provided adequate reasons, and that appeal was dismissed.

68. In relation to the refusal to grant an adjournment of the trial being conducted in Adelaide, in circumstances where the husband had organised for legal representation in Melbourne and that lawyer sought an adjournment which was refused and the lawyer withdrew, the husband then asked for an adjournment based on the need for legal representation and that adjournment was refused.  The Full Court determined that the adjournment should have been granted and the property orders were set aside and a new trial was ordered (this trial).

69. The husband had also sought leave to appeal an order for the issue of a new certificate of title, leave to appeal that order was refused.

70. The appeal in relation to the January 2013 order (setting aside the voidable property and costs orders) was apparently made in the absence of a party.  That appeal was dismissed.

71. The application for leave to appeal in relation to procedural orders made by Cronin J was dismissed.

72. The proceedings were placed in my docket for hearing.  Given the long history of the proceedings I listed it for directions as soon as was practicable.

73. Thus on 24 June 2014 the matter came before me for directions.  I listed the proceedings for final hearing in Adelaide for five days commencing 15 September 2014.  I directed the filing of affidavits, expert reports and financial statements.  I directed that, three business days before the commencement of the hearing, the parties file and serve case outlines, which contained the list of documents upon which each party seeks to rely, a chronology, the orders that each party seeks and outline of that parties’ case.

1. That listing gave the parties just about three months to prepare for the hearing.

2. In August 2014 further orders were made by my docket Registrar extending the time for the wife to disclose documents that she had not already complied with and to provide financial details of her new home and her partner, Mr E.  The husband was given leave to issue a subpoena to the Commonwealth Bank of Australia and the conveyancers who were engaged on the sale of P Street.  The question of costs was reserved and I have referred to reserved costs in these reasons and my orders.  The Registrar extended compliance dates as to order 8 made 24 June 2014.

3. About two weeks or so before this hearing the husband engaged Mr Finlayson, a solicitor, to appear for him.  Given his late involvement and to enable material to be filed I made further directions to enable the husband to file affidavit and other material which had not been filed by the husband in accordance with my earlier directions.

4. About one week before the first day of hearing, at the request of the husband’s solicitor, I made further directions, extending time for the husband to file his material.

5. During the hearing, the husband became an unrepresented litigant, and as a consequence was struggling to present his case in the best light possible.  I endeavoured to provide him with as much procedural assistance as possible.  

6. However, the husband is not a stranger to court proceedings given the history of proceedings in the Family Court, the Full Court of the Family Court and special leave application to the High Court.

7. There is evidence that he is engaged in a number of law suits in the United States.

8. The husband made numerous complaints that the wife and her solicitor had failed to discover relevant documents.  This complaint was persistently made by him throughout the hearing.

9. In terms of his assertion that he did not have the discovered documents[15] this was unmeritorious and for the reasons set out, I find that the husband’s behaviour in relation to such complaints about discovery was untrue, calculated and mischievous.

   [15] Exhibits W10 and W11.

10. At the conclusion of the five days of evidence, to enable the husband to prepare his submissions, I adjourned the proceedings part heard for a week to the following Friday, 26 September 2014. 

11. Those submissions were taken over about three to four hours on that Friday, with the lion’s share of that time being taken by submissions made by the husband.

12. As I said earlier, it was not clear as to what orders the husband sought until the close of the wife’s case, on the fourth day of evidence.  His formal case outline was only provided to the counsel for the wife on Friday 26 September 2014 and provided to this Court on that day or the day before.

13. In advance of making his closing submissions the husband made an application for a ‘re-hearing’. 

14. I asked the husband what he was seeking in terms of the term ‘re-hearing’.  The husband initially did not answer that question.  I then asked him whether he was seeking leave to call further evidence or whether he was suggesting that the proceedings ought to be abandoned altogether and started again.

15. The husband’s then submission was that the hearing ought to be abandoned altogether and started again.

16. I asked him for the basis of that application.

17. When making his submissions the husband reiterated his belief that the wife had failed to make full and proper discovery.  Given the evidence, I rejected that contention.

18. He complained that the parties had not complied with directions made by me in June 2014.

19. One was for the provision of a trial book, which material was to be page numbered and that the wife’s document was not page numbered.   

20. The husband complained that the wife may have been a little late in filing her affidavits.  That may be the case, but the husband was not prejudiced by that, given his later extensions of time.

21. The husband did not file his trial material until a few days before the commencement of the trial and his documents discovered to the wife were tendered by the wife. 

22. The other documents upon which he sought to rely were contained in Exhibit W8 being a portion of a bundle which was produced some time during the trial.

23. The husband complained that he was cross-examined about documents which were not in that bundle of material.  A number of those documents arose from material discovered by the husband.

24. Given the evidence and history of this matter, that application was without merit and it was dismissed.

25. These reasons follow my re-hearing of the wife’s property proceeding.

THE EVIDENCE

1. The wife relied upon the following material:-

   1.her application for property orders filed 17 January 2014;

   2.her lengthy affidavit filed 20 May 2013 (158 paragraphs);

   3.her shorter affidavit of 20 May 2014 (12 paragraphs);

   4.her affidavit of 27 August 2014;

   5.her financial statement of 27 August 2014; and

   6.the evidence of Mr Z; including his curriculum vitae, his report of 22 May 2013, the letter of instructions for that report, his report of 28 July 2014, the letter of instructions for that report and two letters from Daniel John Lawyers of 25 July 2014 and 28 July 2014.[16].

   7.The oral evidence of Ms Hicks, her solicitor.

   [16] Exhibits W4, W6, W5, W7, W8 and W9 (the last exhibit contained two letters from Daniel Johns Lawyers).

2. In addition the wife tendered documents including her case outline about which the wife deposed to the accuracy of the chronology contained in it. The summary of argument was treated as an aid memoire.

3. The husband relied upon:-

   1.his amended response to the wife’s application filed 27 May 2013;

   2.his affidavit filed 8 September 2014;

   3.his financial statement 9 September 2014;

   4.his affidavit filed in Court on 4 September 2014 in which he said he was able to borrow $10,000 from his brother-in-law; and

   5.affidavit of K filed 8 September 2014.

4. In addition the parties tendered numerous documents during the course of the hearing.

5. The husband was cross-examined in relation to his financial statements, including his 9 September 2014 financial statement.  Those earlier financial statements namely, 21 May 2013, 30 April 2008 and 4 September 2007 were referred to by the husband in cross-examination and concessions were made in terms of the aid memoire which was then tendered by the wife.[17]  The wife did not seek to tender the three earlier financial statements nor did the husband.  Given the concessions made by the husband as to the material in those financial statements there was no need to do so.

   [17] Exhibit W14.

6. The wife tendered two affidavits of the husband namely his affidavit filed in the then Federal Magistrates Court. The first being paragraphs 95 and 96 of the affidavit of the husband filed on 23 July 2007, as to the gift of $13,000 by the wife’s father,[18] and the husband’s affidavit filed 27 August 2008[19] in relation to the bonds disclosed in the annexures.

   [18] Exhibit W17.

   [19] Exhibit W18.

7. This is not intended to be a comprehensive list of the evidence as much was contained in the oral evidence of the parties, part of which I refer to in these reason and the whole of which I have considered.

THE LAW

1. The law regarding the treatment of property has been clarified following the High Court decision in Stanford v Stanford.[20]  Prior to that decision the preferred approach was the four step process as reflected by the Full Court in cases such as Hickey v Hickey and the Attorney General for the Commonwealth of Australia (Intervener) (2003) FLC 93-143.

   [20] [2012] HCA 52, (2012) 293 ALR 70.

2. Following Stanford v Stanford (supra) the approach is that a Court must firstly be satisfied that before making any order it is “just and equitable”[21] to do so. Then consider what orders, if any, should be made having regard to s 79(4) of the Act.

   [21] Section 79(2).

3. This approach was later adopted in Bevan & Bevan,[22] where Bryant CJ and Thackray J noted that the Stanford and Stanford (supra) decision:-

   … serves to refocus attention on the obligation not to make an order adjusting property interests unless it is just and equitable to do so. [23]

   [22] (2013) FLC 93-545.

   [23] Ibid at para 65.

4. In Chapman and Chapman[24] the Full Court considered the independence of ss 79(2) and 79(4) and confirmed that Bevan v Bevan correctly stated the law in relation to the Courts consideration of s 79(2), whether the making of an order is just and equitable. At paragraph 19 of their joint reasons Strickland and Murphy JJ said:-

   Section 79 demands a consideration, separately, of all of its requirements without conflation.

   [24] [2014] FamCAFC 91.

5. However, their Honours disagreed with any intention of plurality in Bevan v Bevan, in that the Court must consider the matters in s 79(4) when addressing s 79(2) of the Act in terms of what order is to be made. To clarify, Bryant CJ said in a separate judgment:-

   Whatever differences may exist as to the meaning of [84] and [85] of Bevan, I am in agreement with Strickland and Murphy JJ that it is not a requirement to take account of the matters in s 79(4) when considering the question of whether it is just and equitable to make any order under s 79(2). But as long as they are seen as separate and not conflated, the factors in s 79(4) have the potential to inform the decision under s 79(2) …

6. Accordingly, the approach I will adopt, when determining a division of property, is:-

   1.Identify, in the context of ordinary legal principles, the existing legal and equitable interest of the parties in the property;

   2.Consider whether in the circumstances of the parties it is appropriate and just and equitable for any order to be made having regard to s 79 of the Act; and

   3.To consider and take into account any contributions and other matters, as are relevant, having regard to the provisions of s 79(4) of the Act and make such order as is appropriate. It is the function of the court to consider those relevant factors in the context of what is appropriate in all of the circumstances, provided always that it is just and equitable to do so.

THE WITNESSES

The wife

1. The wife gave evidence in accordance with her affidavits and financial statement set out earlier in these reasons.  She also said that the facts contained in her case outline[25] were to the best of her knowledge true and correct.

   [25] Exhibit W1.

2. The wife gave oral evidence as to the purchase of a property at Suburb A with Mr E.  It is subject to a mortgage, to which I have referred to elsewhere in these reasons. 

3. The wife amended her trial affidavit saying that the divorce hearing heard 30 November 2012 was one in which the husband filed a response and opposed the then application.  On the day of the divorce hearing the husband withdrew his response and as a consequence the wife incurred considerable costs.  She received the benefit of a costs order.

4. The wife gave evidence that in about 1996 she had been diagnosed as suffering from an obsessive compulsive disorder.  The wife says she is being treated for that disorder.

5. The wife said that she was the primary carer of the children for most of their lives and challenged much of the husband’s evidence contrary to her assertion in this respect.  I accept that the wife was the primary parent of the children for the whole of their lives up until about the time that each attained the age of 18 years.  Much of this parenting was done without the assistance from the husband.  He was mostly physically absent for about two and a half years between 1990 and 1995 and for the about eight years from between late 1999 until separation in May 2007.  In the last eight years there were regular visits by the father from the United States. 

6. The wife was cross-examined by the husband in relation to her knowledge of relevant areas of United States law, she said that she was not aware of the relevant area of United States law regarding the government agency pension and gave evidence that she had no intention of living or going to the United States or claiming the pension.

7. The wife gave evidence of various part times jobs she had undertaken at various times between 1989 and 1999.  These jobs were of limited duration and the wife applied the modest income from that work for the benefit of the household.  The wife also received benefits by way of child entitlements from the Australian Government.  I accept that evidence.

8. Her evidence was, and I accept, that she undertook most of the housework and was assisted, from time to time, by the husband.  However, given the evidence of the wife that the parties lived at different places very often during their long relationship I am satisfied that the wife’s overall contributions as a homemaker and parent were far greater than those of the husband.

9. Since November 1999 the wife has worked as a healthcare worker.  There was some criticism of her working efforts in that she could have undertaken extra work.  I reject that criticism given that I am satisfied the wife is working to the extent of her capacity, having regard to her background and her long paid employment history since 1999.

10. The wife was cross-examined in relation to monies made available to her during the 1990s.  The wife had trouble remembering the details of those monies, although she made concessions against her interests from time to time.  Her evidence was frank and she made concessions at the appropriate times.

11. It is clear that the wife received $7,000 in about 1994 from various sources including the husband and that significant other monies were paid into accounts in her name or into investment accounts by the year 2000.  I accept the wife’s evidence, given the material provided by the husband from the financial records of the parties that the wife had savings of about $24,000 at the time the house was purchased.

12. I am equally satisfied that the source of a significant proportion of this sum, although the exact proportion is not clear, came from monies either earned by the husband during the course of the marriage or accumulated prior to that time.  I have given weight to that in terms of contribution.

13. The wife gave evidence, and I accept, that her father gave an amount of $13,000 towards the purchase of the parties’ home and also painted the home.  From the evidence of the financial records, it appears that perhaps another $20,000 or $30,000 came to Australia through the husband in the second half of the 1990s.

14. The wife’s evidence was that parenting and property proceedings were commenced by her in the then Federal Magistrates Court soon after separation.  After separation the wife moved back into her parents’ home and has since continued to live in that home or accommodation provided by them.

15. It is not in issue that the husband provided the overwhelming funding of the purchase monies for the home at P Street.

16. The wife gave evidence as to the reduced accommodation costs over many years, this was provided to her by her parents and now her mother.  I have treated this as a significant contribution. 

17. In terms of their present house, the wife and Mr E are paying mortgage instalments on their property at Suburb A of about $1,532 per month.

18. The husband cross-examined the wife on the basis that she was earning income without paying tax.  There is no objective evidence, other than of the wife having complied with her tax obligations both in Australia and in the United States. 

19. The wife was cross-examined in relation to the husband’s former attorney in the United States, Mr G.  The wife’s evidence, which I accept, was that she only saw him once or twice and did not otherwise see him.

20. The wife’s evidence was that the American litigation was driven by the husband.  Given the evidence of the Power of Attorney and having seen the demeanour of the husband in the witness box and his determination I am satisfied that was the case.

21. The wife asserted the husband had $115,000 Australian dollars at the time of separation which has been dissipated.  The evidence is that the husband had an account with Westpac Bank which he created with an amount of about $40,000 or $50,000 in 2002 which grew into a sum in the ANZ bank of about $108,000 or $114,000.

22. This was apparently reduced over the years following separation; given that only the husband had access to the funds I am satisfied that much of it was used by the husband.  Of the remainder, about $70,000 was paid to the wife pursuant to order made 1 October 2010.  Order 3 provided for a partial payment of the sum referred to in para 1(1) of the orders made 23 April 2010 and the wife’s solicitors be authorised to release to the wife the sum of $70,000.  This sum was used by the wife in terms of legal costs, which is unsurprising, given the extensive litigation over many years.

23. The husband has asked that $70,000 be ‘added back’.  Given the money spent by the husband over the period following separation in May 2007, I have had regard to the advance of $70,000 in terms of contribution and as I have said later, I do not intend to add that sum back as a notional asset.

24. The wife was cross-examined at length over the US Treasury bonds that the husband asserted the wife allegedly knew of.  The wife said, and I accept, that when mail came in from the husband she would tell him about it and she would not open the mail without his consent.  I accept that the wife had little or no knowledge of the detail bonds except a $(US)50 bond that was received by her after the birth of the parties’ first child.

25. The husband made a number of attacks on the credit of the wife during the course of his cross-examination including that she was coached, and that when she was unable to remember things from some years ago that it was a false assertion.  My assessment of the wife was that she endeavoured to answer the questions frankly and directly.  There was no indication that she was coached and her limitations of her memory of the detail of events, sometimes decades previously was more likely memory deficit over years rather than the fabrication or reconstruction as asserted by the husband.

26. An example of the wife’s frankness was demonstrated during cross-examination where the husband asserted that she had listed all of his financial details in about 2004 or 2005.  The wife initially disputed this but when pressed later about recording credit card numbers in case they were lost, acknowledged a memory in that respect.  The wife does not have the eye for detail as does the husband.  However, I am satisfied that she endeavours to tell the truth from her own subjective view of it.  She listened carefully to questions and her demeanour was open and frank.

27. The wife was questioned as to detail from events ten, twenty or thirty years ago and appropriately acknowledged that she could not remember all of these events but when shown documents which established such events, such as her bank accounts, she was open to acknowledging the source of those funds.

28. The husband says the wife’s credit is impeached and that her conduct was questionable.  The husband was endeavouring at times to cross-examine the wife about what he believed were her affairs over the marriage. I reject that contention, having seen and heard the wife give evidence.

29. I have treated the evidence of the wife as generally reliable.

Ms Hicks

1. Ms Hicks is the wife’s solicitor and has acted for the wife since mid-2007.  Evidence was given by Ms Hicks given the complaints by the husband and, earlier, his solicitor that the wife had not provided full and proper discovery to the husband.

2. Ms Hicks said that the wife had made full discovery by serving four volumes of documents[26] on the husband prior to May 2013.  The husband said he had not received any such documents and denied the existence of those documents.

   [26] This subsequently became Exhibit W11.

3. Ms Hicks gave evidence that she filed two affidavits on 20 May 2013 where she had bundled the wife’s discovered documents into four folders (volumes 1 to 4) and attached it to an affidavit.  She said that these documents were identical with Exhibit W11.

1. Ms Hicks said that she had received a bundle of the husband’s documents which were disorganised.  It was asserted that the bundle was put in logical order and then bound.  The husband disputed that he had those documents and said that they were not provided to him.  Ms Hicks said she filed an affidavit with the husband’s documents, which she had reorganised. These were bundled into three volumes and are Exhibit W10.

2. The evidence of Ms Hicks was that she served all of the documents contained in Exhibits W10 and W11 on the husband prior to the filing of her affidavits.  She then bundled the documents into the bundles referred to in Exhibits W10 and W11 and they were served on the husband by courier on or after 20 May 2013.

3. Ms Hicks gave evidence that the four folders, being a copy of Exhibit W11, were in the husband’s possession and he brought them out from time to time during the course of the trial.

4. Ms Hicks said that the husband asserted that he had never been served with W10 and so she arranged for a further bundle of those documents to be made available to the husband on day two of the trial.

5. The husband was given the opportunity of cross-examining Ms Hicks in relation to those assertions.  Ms Hicks was not in any way shaken in cross-examination. 

6. Ms Hicks said that there was a long history of the husband asserting he had not received documents. 

7. I am satisfied that the husband has had available to him since May 2013 the wife’s discovered documents contained in Exhibit W11 and the re-organised bundle of his documents contained in Exhibit W10.

8. Ms Hicks gave evidence that further documents were discovered by the wife and were contained in the material given to the husband and/or his legal representatives in or about August 2014.

9. I find that Ms Hicks was frank and accurate in her evidence.  I accept the veracity of her evidence.

Mr Z

1. Mr Z is an adversarial expert whose qualifications are:-

   - Advanced Diploma of Financial Services (Financial Planning) 2011;

   - SMSF Specialist Advisor (2005);

   - Chartered Tax Adviser (formerly Fellow of the Taxation Institute) (1992);

   - Fellow of the Institute of Actuaries of Australia (1995); and

   - Bachelor of Arts (Actuarial Studies, Macquarie University) (1981).

2. Mr Z says that he is not an expert in the area of the relevant USA government agency pensions, nor the USA taxation system.  However, he says that he has expertise in Family Law superannuation valuation calculations and has undertaken extensive calculations and advice on superannuation related Family Law matters. 

3. In his first report he calculated the annual value of the husband’s US Government Agency Pension as $(US)45,984 gross of tax and $(US)43,019.40 net of withholding tax on the basis that these amounts were the advised amounts multiplied by 12.

4. In his second report he calculated the annual value of that Government Agency Pension as $(US)46,668 gross of tax and $(US)41,089 net of withholding of tax on the basis that these amounts being the advised amounts multiplied by 12.

5. The valuation of Australian defined pensions is under Australian Family Law.

6. Mr Z said that for the purposes of placing a capital value on the US Government Agency Pension he has regarded it as practical and appropriate to use the same approach and factors that he would use if the pension entitlement was being paid under the H Fund, for Australian personnel in a comparable government agency.  He said:-[27]

   The [F Fund] has a separate set of valuation factors approved under the Family Law (Superannuation) (Methods and Factors for Valuing Particular Superannuation Interests) Amendment Approval 2003.

   [27]Exhibit W7.

7. Mr Z said that for the purpose of his calculations he has used the annual rate of pension as the annual indexed pension, with all other pension amounts being disregarded.

8. Given the evidence I intend to treat the pension income as a financial resource of the husband accumulated over about 28 years during which period he was married to the wife for about ten years, viz about 36 per cent of the period of employment.

9. Mr Z is not an expert in terms of the relevant US government agency pension law and I do not accept his valuation.  This determination is made, given the lack of evidence, and the lack of knowledge of the wife’s possible entitlements (other than that asserted by the husband) to claim against the husband’s Government Agency Pension in the United States and her reluctance or practical inability to do so.

The husband

1. Once the husband commenced to represent himself, he was mostly polite but expressed regular frustration, discontent, and distrust of the court processes.  He reiterated his fixed determination to achieve his pre-conceived and continuing belief of the overwhelming worth of his financial contributions to the marriage and the small or negligible contributions of the wife.  The husband regularly asserted that the wife was under the control of her solicitor, who in turn promoted these proceedings for her (the solicitor’s) interests and contrary to the interests of her client, the wife.  He asserted that the wife is being manipulated by her legal advisors to seek a greater share of the property to which he believes she is entitled.

2. I add at this point that in respect of the material before me, I did not observe, read or hear evidence of any unethical or improper behaviour on the part of the wife’s solicitor.  

3. The husband plainly is angry at the break-down of his marriage and the litigation following that break-down.  He gives his wife little or no credit in terms of her role as a homemaker and parent of their two children and believes that she made no indirect financial contributions to the parties during the course of their marriage.

4. The husband expressed in evidence and in submissions he is the victim of a conspiracy by the Government of the United States and the Government of Australia.  Towards the conclusion of the third day of hearing, the husband asserted to me that I was being manipulated or directed by someone outside the Court.  He said:-

   Your Honour, have you been pre-instructed on this, because you won’t let me get any information.

5. I asked the husband to either adduce evidence or withdraw the assertion, he did neither.  At that time the husband believed that I was part of some conspiracy against him.

6. I observed the husband throughout the trial, and his evidence and demeanour; my assessment of him and his evidence was that he was not constrained by notions of frankness or truthfulness in giving evidence.  He seemed to say what was needed to be said in an effort to achieve the end in which he sincerely believed.

7. His inconsistent approach to the costs he incurred or did not incur and his denial of having the wife’s discovered documents, described elsewhere in these reasons, are but two examples of this approach.  The inconsistences in his financial statements are other examples. 

8. As I said earlier, the husband complained throughout the trial that the wife had not made full and frank disclosure.  Apart from denial he could not explain the evidence of Ms Hicks or the wife as to discovery.  I observed him, from time to time referring to and looking at the very bundles which he at other times denied having in his possession.

9. The husband gave evidence as to his present financial situation which was essentially as per his financial statement, although he said there were two items omitted including the Invest Co[28] items.  That was the first time this had been asserted and this arose on the fifth day of the trial, and was not included in the list of property asserted by the wife.  I substantially adopted the wife’s list.

   [28] Evidence of the husband is that Invest Co is now called AIM.

10. The husband gave evidence that he has what is known as an individual retirement account (‘IRA’) from which he can deduct money now that he is over sixty, but cannot add money to it.

11. A further example arises out if his discovered documents in which the husband disclosed that there was an account entitled ‘[Mr Forster] TR for [Ms Forster]’ containing about $(US)4,320 in 2007.[29]

    [29] Exhibit W10, pages 296 to 300.

12. The letter from the Division of Financial Institutions State of Hawaii shows that he was concerned in December 2008 about the titling of the accounts.  The account in his wife’s name …50 is shown in subsequent documents to be in the husband’s name and addressed to the husband at his Australian address.[30]

    [30] Exhibit W10, pages 306, 307, 308, 309, 310 and onwards.

13. It is significant that the husband provided the accounts from the Central Pacific Bank in relation to this account for a consecutive period from at least 30 April 2010 through to well into February 2012.

14. There was however one page missing.  That page related to the period 30 November 2011 to 26 December 2011.  In that period, where the page was missing, there was a deposit of approximately $10,000 made into that account.

15. The wife asserted that it is significant that page was omitted; the husband could not explain why the page was missing.  Given the cross-examination on behalf of the wife and the implicit submissions arising from those I am satisfied that those funds likely came from an account in the wife’s name.  I am also satisfied that there were at least funds in the husband’s name as trustee or the like for the wife and that he did not disclose that in his 2008 financial statement.  The husband’s evidence about this material was unsatisfactory and he prevaricated in his answers. 

16. Another example of the husband failing to make full and frank financial disclosure was in relation to his US Treasury Bonds.  In his affidavit filed 8 September 2014, which was a few days before the hearing commenced, he annexed a document marked ‘MKF1’ setting out the records of his bonds purchased over a period of time.  The husband asserted that the wife was well aware of his savings bonds.  This assertion was made in the context of the wife denying she was aware of the husband’s significant assets and said she was surprised with the amount of money available through him to purchase P Street in 2000 and to purchase a car a few years later for about $20,000.

17. There is no documentary evidence that the husband discovered this document to the wife during the course of these proceedings. 

18. What is not in issue is that over many years the husband purchased US Treasury bonds.  He provided a schedule to some bonds in a document attached to his 9 September 2014 financial statement.  The husband asserted that this document only recently became available to him; however I do not believe that evidence.

19. The total cost of the bonds (the total investments) from that statement was shown as being about $(US)156,800.  The interest accrued on those bonds as at September 2014 was $(US)154,644.44 making a total value of the bonds $(US)309,444.44.  The value of that US dollar sum at the date of the hearing in terms of Australian dollars was some $334,199.

20. Interest is payable on the bonds, although the evidence of the husband seems to be that if it is rolled over there may be no interest or it is rolled over at its current value, I am dubious as to the veracity of that evidence.

21. The husband’s prevarication and failure to fully disclose the detail of those bonds throughout the seven year process of these proceedings was part of the material upon which I had based my concerns about the reliability of his evidence generally.

22. No expert evidence was provided in relation to the bonds, and it was open for the husband to adduce same.  A lack of legal advice is not an excuse as the husband has regularly employed legal practitioners to assist him in this litigation.  From the face of the material provided to me, I am satisfied that these bonds were acquired between 1993 and 2011.  It is not clear whether any or some of the bonds were rolled over from previous bonds and if so, the value of those previous bonds.  Interest seems to accumulate on those bonds and it seems likely that the capital and interest on the bond would be paid upon maturity of the bond.

23. The husband has said that he has no intention of rolling over the bonds because he does not wish to pay tax on the interest.  There is no expert evidence as to what the tax would be on the interest, whether it is tax payable in Australia or in the United States.  I do not accept that the husband is an expert in respect of tax law.

24. As I have said later I will be treating the bonds at their value of $334,199 as that is the best evidence available for me.  I do not know what tax, if any, is payable nor is there any evidence before me of whether there would be any tax relief in relation to the transfer of those bonds to the wife under either Australian or United States laws.

25. It was only in his financial statement of 9 September 2014 that the husband provided more details of these bonds.  In his first financial statement and others he estimated their value often far below that which has now been shown.  When questioned about these differences, the husband prevaricated. 

26. It is clear that full disclosure of the bonds was not made until September 2014, if that in itself is a full disclosure.

27. The husband sought to rely relied upon his affidavit filed and sworn 8 September 2014 and his financial statement filed and served 9 September 2014. That was permitted except the evidence referring to exhibit ‘MKF1’ and the exhibit itself.  That exhibit contained a prepared list of bonds over the 1990s and beyond.  The providence of that list of documents was in doubt and the husband had failed to discover that document despite the proceedings, in one form or another, being on foot since 2007 and despite the husband, from time to time, having legal representation.  I rejected his reliance upon that material.

28. The husband also sought to rely upon photocopies of bonds upon which he claimed that the exhibited document was created.  The husband had not discovered to the wife the copies of bonds despite numerous orders to do so (including as far back as early 2013 in the Family Court).  The underlying philosophy of litigation in Family Law proceedings is ‘show and tell’ not ‘hide and seek’.  To produce a bundle of copy bonds a day or so before the third hearing of the property proceedings is unfair on the wife and in this case is indicative of the adversarial and tactical approach adopted by the husband, and is indicative of his calculating behaviour in terms of the wife’s alleged non-disclosure. 

29. The husband cross-examined the wife in terms of the $13,000 she asserted her father paid towards the purchase of the home in P Street.  The husband gave evidence that no payment was made.  Given my assessment of the veracity of both parties and the earlier affidavit material of the husband I accept that the payment occurred.  In coming to this conclusion I also reflected on the cross- examination of the husband in respect of the evidence contained in his affidavit filed 23 July 2007,[31] the husband had prevaricated when challenged with this contradictory evidence.

    [31] Exhibit W17, paragraphs 95 and 96.

30. The husband’s discovered documents[32] show a deposit in the Wachovia term deposit of $(US)11,757.60.  This was not disclosed by the husband in his 2008 financial statement.

    [32] Exhibit W10 page 461.

31. In terms of the husband’s reliability he asserted in his 2012 income tax return that he had the two children as dependents on the basis that they ‘live with [him]’.  Clearly they did not.

32. I am satisfied that the husband was not frank in that income tax return.  I accept the submissions of counsel for the wife in that respect.

33. The husband is not a reliable witness.  He at times fabricates evidence, such as his denial about having the wife’s discovered documents in front of him at the bar table, and prevaricated in many areas of evidence.  I have treated his evidence with great caution. 

K

1. The husband relied on an affidavit of the parties’ son K, which was filed late in the proceedings by the husband.  Significant parts of that affidavit were not read or struck out.  The remainder had little relevance to the issues in dispute.

2. Sensibly the wife did not require him for cross-examination.

Discovery

1. As I have said, the husband asserted over and over again that there had been inadequate discovery by the wife.

2. I accept counsel for the wife’s submission that since separation the husband has avoided disclosure of his finances and was secretive.  He was secretive of his finances during the course of the marriage and I accept the evidence of the wife to that extent.

3. I also accept counsel’s submission that in his evidence the husband prevaricated and obfuscated and did not make full and frank disclosure.  I have provided examples of this elsewhere in these reasons.

4. On at least one occasion during the hearing, the husband complained that he did not have Exhibit W11 and he then subsequently produced the missing bundle from his material.  On another occasion he asserted that the documents he had were not tabulated.  I accept the evidence of Ms Hicks that they were tabulated when given to him.

5. The behaviour of the husband in denying that he had received or seen the discovered documents at times bordered on the bizarre.  Given the evidence and my observation of the husband, I conclude that he was both manipulative and mendacious.

6. He often denied he had these documents and yet during his examination of the wife, he obviously made use of them.  From time to time I reminded him that parts of that material was in plain sight in front of him.

7. Given the evidence of the wife, Ms Hicks, and the material contained in the application in a case and affidavit both filed on 6 August 2012,[33] I accept that the wife has made full discovery.

   [33] Exhibit W12.

8. The husband asserted the wife hid resources and assets.  He asserted that she had bonds in her name.  There was no cogent evidence produced to the Court to support that contention. 

9. These parties have been seven years in litigation.  The husband endeavoured to complain that this was material that he provided to the case guardian, others and solicitors and endeavoured to deflect the blame to them.

10. The false assertions made by the husband as to non-provision of documents has put the wife and the Court to trouble and expense.

PROPERTY OF THE PARTIES

1. As best I can I determine the property and the liabilities of the parties are:-

Property	Owner	Amount
Wife’s interest in property purchased with Mr E - determined	Wife	$70,000
US Treasury Bonds[34]	Husband	$334,199
Money held in bank accounts in the United States[35]	Husband	$41,060
CBA – Pensioner Security Account	Husband	$3,685
Camper trailer – owned by husband[36]	Husband	$2,000
Husbands Pontiac car – owned by husband  - agreed value	Husband	$10,000
Husband’s Toyota car – owned by husband[37] - agreed and asserted value	Husband	$500
Wife’s car – determined value	Wife	$3,000
Husband’s furniture & effects and his ‘tools and other’[38]	Husband	$15,000
CWB Account $3,865, National Australia Bank retirement account $500 and a Privilege Assets account $2,915	Husband	$6,270
Furniture and effects – determined value	Wife	$2,000
Wife’s superannuation - determined value	Wife	$34,955
Total	$522,669

[34] Husband’s Financial Statement 9 September 2014 – item 38.

[35]Ibid - items 35 & 36.

[36]Ibid - 35.

[37]Ibid - item 40.

[38]Ibid – item 43.

1. The liabilities claimed by the parties were not accepted by me for the reasons set out.

2. The wife has liabilities arising from her purchase of the property with Mr E.  Given that the wife cleared her debts last year, including credit card and long term borrowings for legal costs, from the proceeds of sale of P Street and the remarks I have made about that home it value and the mortgage and other debts, I will not be allowing those debts in terms of this property adjustment.

3. The husband’s claimed liabilities of $(US)15,000 to each of his daughter’s Q and R, from a previous relationship,[39] a liability of $5,000[40] allegedly due to K and a liability to Ms J.[41]  I have not accepted this.

   [39]Ibid – item 50. 

   [40]Ibid – item 50.

   [41]Ibid – item 53.

1. The husband asserted he had money in an account at the Honolulu Central Bank in the sum of $5,232, although he tried to withdraw that evidence.  I treat his earlier evidence in that regard as more reliable.

2. I am satisfied that the husband regularly understated the investments he had in the United States.

3. In the husband’s discovered documents[73] he disclosed that as at between March and September 2008 he had invested with that institution $(US)11,757.60.  He did not disclose those funds in his financial statement of 30 April 2008.

   [73] Ibid pages 461 and 462.

4. It is clear that the husband pays money to his daughters.[74]  On the final page of his statement of financial circumstances headed ‘Retiree Account statement’ shows that at least in August 2014 the husband’s gross pay from his pension was $(US)3,889 with a waiver of $(US)130.94 leaving a net amount of $(US)3,758.06.  Of that sum $(US)2,500 was paid towards allotments and bonds.  The husband gave evidence that was paid as to $(US)150 to each of his elder daughters, $(US)350 to K and the balance of $(US)1,850 to the Bank of America.

   [74] Husband’s statement of financial circumstances filed 9 September 2014.

5. The husband took a wage of $(US)793.  He initially said this was a regular payment but withdrew from that and said it changed from time to time.

6. The husband asserted the assets and liabilities of the parties as at May 2007 were those set out in his amended case outline.[75]  For the purpose of this hearing I have determined that the assets in the husband’s control or of the husband at the time of separation, which I have determined to be May 2007, as to bank accounts were:-

   -    ANZ term deposit  $114,703

   -    ANZ access account  $      835

   -    Bank SA account  $    1,572

   -    CBA bank   $   10,624

   -    Total  $127,734

   [75] Exhibit H10.

7. I have determined that the husband had bank accounts in the United States as follows:-

   -    Bank of America account ending …78  $ 1,002

   -    Bank of America account ending …97  $ 5,026

   -    Bank of America IRA[76] account  $44,526

   -    Central Pacific Bank ending in …50  $ 1,919

   -    Central Pacific Bank ending in …10  $11,004

   -    Citibank merged with Central Pacific ending in …10  $ 2,280

   -    Pearl Harbour  $ 7,030

   -    Joint account  $ 1,673

   -    Fort Jackson Federal Credit Union  $10,500

   -    Honolulu Bank  $ 5,232

   -    AIM Investments  $ 1,598

   Total  $91,790

   [76] Individual retirement account.

8. The Fort Jackson Federal Credit Union and Honolulu Central Bank accounts are conceded by the husband in his financial statement sworn September 2007 and the AIM Investment account was likewise conceded.

9. I am also satisfied that the husband had US bonds measured in the sum of hundreds of thousands of dollars rather than the $29,600(US) that the husband asserted in his financial statement of September 2007.

10. As I have said elsewhere I am satisfied that the husband was endeavouring to mislead the Court as to his assets in the United States at that time.

11. I accept the submissions made by counsel for the wife that the parties lived modest and frugal lives and that the husband was a strong saver.

12. The husband says he contributed equally to the care of the children.  That submission was not based in fact.  The wife was the primary carer of the children from their respective births until at least the beginning of 2013 when the youngest child turned eighteen.  There is some evidence that the eldest child still receives some support from the wife although I have focused my attention on the period of time when the children were under eighteen.

13. The wife cared solely for the children whilst the husband was in Central America for eighteen months from 1990 to 1991.  The wife solely cared for the elder child for about one year in 1993 whilst the husband undertook the training course.

14. The mother was the primary carer of the children from the time the parties resumed living together in 1994 until 1999.  The husband worked long hours in his work with the government agency and as such the wife was the primary carer of the children and homemaker. 

15. The husband’s submissions in relation to this were again somewhat curious.  He said that he did all of the cooking, but then said most of his meals were taken within the government agency facilities.  It is clear that the lion’s share of the upbringing and care of the children was that done by the wife.  I accept that the husband did assist with housework and undertook cooking for the family from time to time.

16. Following the mother moving to Australia in 1999 until separation in 2007 the husband was significantly involved in the litigation in the United States.  I accept the evidence of the wife that the husband spent mostly more time in the United States than in Australia and when in Australia he lived with the wife at her parents’ home until early 2006.

17. When the wife travelled to the United States for three months in 2003 the children were cared for by the wife’s parents.

18. In terms of contribution the wife facilitated the husband’s involvement with the government agency by enabling him to serve in Central America for eighteen months early in the marriage and enabling him to undertake his training towards being in the course in 1993.

19. I prefer the evidence of the wife that this was a joint decision and enabled the husband to focus on his studies and his work to that end whilst she cared for the eldest child of the marriage at that time.

20. In his submissions the husband asserted there was a ‘conspiracy’ to deny him adequate legal representation and procedural fairness.  The husband asserted that he had spent $200,000 on legal fees.  In his evidence the husband was not frank in declaring the amount that he spent in legal fees.

21. I accept the wife had money in the bank of about $24,000 in 2000.  I accept this primarily came from the husband’s earnings during the course of the marriage and parts of it may have come from bonds, although the providence of those bonds is not clear.  There was a very small amount of money from the wife’s earnings, and money in relation to gifts, etc.

22. I am satisfied that the majority of these funds accrued during the course of the marriage and was used by the wife in terms of care of the family.  Part of those sums are likely to have been used, to some extent, on the acquisition of the home, although not to a large extent given the amount of monies paid in by the husband and the gift from the wife’s father of $13,000.

23. P Street was registered as 65 per cent to the husband and 35 per cent by the wife.  I accept that was the legal interest in the property. 

24. I accept and prefer the evidence of the wife that her father painted the home and provided the paint. 

25. Much of the time the children were living with the wife in the absence of the husband.  I accept that the wife cared for the children in cooking their meals and providing for their needs.

26. As to what happened in the wife’s home the husband made submissions, although his presence at the home was of a limited nature given the times he spent pursuing his litigation between 2000 and 2007.

27. I accept the husband’s evidence that he ironed his own work clothes.  The husband’s submissions were that he kept the house clean and cleaned before he went to work.  The wife’s evidence was that she was almost entirely responsible for homemaker duties.[77] I accept her evidence about the parenting contributions.[78]

    [77] Wife’s trial affidavit, paragraphs 71 and 73.

    [78] Wife’s trial affidavit, paragraphs 74 to 75.

28. The parties living apart during the marriage added to the burden and the contributions in terms of the wife’s care of the children. 

29. The wife received Australian Government benefits which she banked into her account.  These must be treated as joint contributions and are modest compared to the significant and overwhelming contributions of the husband.

30. The wife gave evidence that her father was very generous.  He bought her the initial car.  Her husband had bought her a second car in 2004 and paid $20,000 towards its purchase which is an indication of the existence of a continuing marriage at that time.  The wife said her mother also provided money to her to support her and to support the husband.  I accept that evidence.

31. I accept the wife’s parents made contributions in terms of providing accommodation to the wife in the early 1990’s and from 1999 to date, except for a period from February 2006 to May 2007.  

32. In relation to the painting of the home, I reject the husband’s evidence that he provided cash or funds towards the purchase of the paint.

33. Exhibit H1 shows that the wife had investments of about $7,000 in term deposits in 1994.  I am satisfied that these came primarily from funds provided by the husband but at some significantly lesser degree were funds to which the parties were entitled under the Australian Social Security system.  This fund grew to about $8,500 and was subsequently deposited in the wife’s Commonwealth Bank account bringing the total of that account up to about $22,000.[79]

    [79] Exhibits H5 and H6.

34. Exhibit H2 shows a series of transactions from the United States to Australia. which involved payments from funds of the husband, although, I am not satisfied that those funds were accumulated before the parties married.  The sums totalled $(US)8,500, to about $(AUS)11,500, another $(US)6,600 to about $(AUS)9,684 and another $(US)9,000 to about $(AUS)12,211.  In 1998 the husband put $(US)6,600 into an Australian term deposit of about $(AUS)9,684.

35. The wife earned limited funds in the United States.[80]

    [80] Exhibit H8, pages 61, 65 and 66.

36. Contributions by the wife in terms of paid employment were overwhelmed by that of the husband.  The converse is the case in terms of parenting.

37. The wife covered the children for medical insurance from 1999 onwards.  The husband gave little credit to her for that as he said the children were covered by the husband’s US government agency health insurance.

38. After separation the wife was injured in a car accident and received a settlement of about $15,000 which she applied to the day to day living expenses.  I have had regard to that settlement.

39. However, I have had regard to the husband having some significant assets at the time of the marriage although the full amount of those assets is not clear.

40. The husband had previously been married.  There were four daughters from that marriage, and a son was adopted.  At the time he commenced a relationship with the wife his daughters from his previous relationship were aged between 4 and 11.  Some of the children stayed with the parties for months at a time over the following years.  I am satisfied that the wife made contributions in terms of caring for those children when they were at the parties’ home.

41. The husband says that he contributed to the acquisition of a car for the wife whilst she was in Australia prior to May 2007.  I accept that circumstance and it is not unusual for one of the parties, who is earning income, to provide a car for the other party and the children.  It was part of the normal interaction in a married relationship.

42. The husband provided financial support for the children of his previous marriage.

43. The husband was asked questions in relation to the property settlement with his former wife and dissembled in terms of his answer to that question.

44. The wife lived in P Street from about February 2006 until she moved out in May 2007.

45. Some work was undertaken on P Street after its purchase including the painting, referred to earlier, the addition of a paved area for a basketball court, the addition of a roller door and a sliding door, the latter being put in after an attempted burglary.

46. Much of the furniture in the P Street home was sold pursuant to an order of the then Federal Magistrates Court which has been discussed elsewhere.  The net proceeds of sale were about equal to the cost of collecting the furniture.

47. The husband asserted that the wife’s contribution was diminished by reason of her mental illness.  I accept that the wife had a mental illness however, given the evidence of the wife that she was the primary carer of the children and cared for them alone for many periods of time, her illness did not diminish her contributions.

48. The husband endeavoured to assert that the wife had received Centrelink benefits in circumstances to which she was not entitled.  There was no evidence to support that contention and the wife denied that assertion.

49. Given the evidence before me it is more likely that the husband used his time, particularly in the late 1990s and the first half of the 2000s to pursue litigation in the United States and has, since 2007, been very involved in proceedings in this Court.

50. The husband submitted that the wife prejudiced his education.  There is no reliable evidence to that effect.  If the husband wished to pursue his education it was open to him, and it was clear that the wife supported his education at the training course in the first half of the 1990s.  The wife moved to and lived in Australia and cared for the parties’ elder child to enable the husband to attend the year-long training course and consequently the husband was promoted.  The husband said that it was her decision, but in saying so he conceded that it was a difficult course and involved long hours of study.

51. The wife does not dispute that the husband contributed money to her whilst she was caring for the children up to 2007.  The husband also had other liabilities during the course of his marriage.  He had some five or six children from previous relationships whom he asserted he supported.

52. At times some of these children stayed with the parties when they were living in the United States.  I accept that the involvement of the wife in the care of these children from time to time was a contribution, albeit relatively small.

53. The husband’s contributions were slightly greater than those of the wife, given the husband’s greater initial contributions.

54. Given all of the above and that discussed throughout these reason, I have considered and taken into account all of the relevant contributions and I determine that the property that I have identified ought to be treated as arising from equal contributions.

OTHER FACTORS

1. As to the wife’s health she suffers from an obsessive compulsive disorder and anxiety, I accept her evidence set out in her trial affidavits.[81]  The wife says she takes regular medication for a disorder and suffers from anxiety.  I accept that evidence and I accept that has little impact upon her ability to continue working.  The husband adduced evidence of the wife’s medical treatment when in the United States in the 1990s.[82]

   [81]At paragraphs 86 to 92.

   [82] Exhibit H8 10 to 25.

2. The husband asserted in his evidence, and I reject, that the wife is under the thrall of her solicitor.  

3. I have had regard to the wife’s ability to work and her current employment.  The husband asserted that the wife is able to work at a greater level.  Given the wife’s age and the nature of employment I am satisfied that she is working to her potential.  

4. The husband says he is too old for any form of work.  I am not sure that is the case; however, I accept that he is much older than the wife and that this impacts upon his ability to find paid employment.  The husband says that he has health difficulties in terms of his wrist although this is not set out in his affidavit material. 

5. In adjusting property, I have considered the parties’ respective ages and the age differential, and the wife’s health, although it does not appear to impact on her earning capacity.

6. The husband has a financial resource in the form of his US Government Agency Pension, which provides him with a regular monthly income in United States dollars.  The amount fluctuates in terms of exchange rate with the Australian dollar.  At the date of hearing he was paid monthly $(US)3,889 and of recent times the husband has been able to apply $(US)2,500 to allotments/bonds.[83]

   [83] Husband’s financial statement filed September 2014 page 3 and page 15.

7. I accept that this pension accrued over the approximately 28 years of his employment in the US government agency, of which about 10 years were when he and the wife were married and had a relationship.  I have given weight to this pension as a financial resource accumulated, at least as to slightly less than one third, by the parties in their joint endeavours from 1989 to late 1999.  From 1999 to 2007 that pension was used for the joint endeavours of the parties, including the accumulation of some US Treasury Bonds, the precise amount of which was not available to me.

8. The husband asserted that the wife has a financial resource in terms of claiming a share of his pension.[84]  He says that this can only be done in the United States.  He says, and I accept, that this Court has no jurisdiction to make orders in respect of that pension.

   [84] Husband’s Financial Statement filed 9 September 2014 – item 57. 

9. The husband gave evidence about his understanding of the law regarding the US Government Agency Pension, given that he has not established any cogent evidence of his expertise in this area, except as a user of the pension and given my general views as to the reliability of his evidence. I have treated his evidence about the pension with great caution. 

10. The wife’s expert, Mr Z, appropriately conceded that he was not an expert in this US Government Agency Pension, and that what he did was value the pension as a source of income.  Given that this is a pension, I have, as I said, treated it as a financial resource.  

11. The wife’s evidence is that she does not have any intention to claim any part of any entitlement that may exist in respect of that pension.  I accept that evidence.  If the wife acts contrary to that evidence she is likely to impeach the orders arising from these reasons.  Her possible entitlement to some unquantified share of the husband’s government agency pension is a financial resource.  Therefore, notwithstanding the evidence of the wife, I give some but not great weight to that resource.     

12. Neither party has the care of a child under the age of eighteen years.

13. The wife is in another relationship and owns her half interest in a home with Mr E.  He is not financially dependent upon her.  The husband has not re-partnered.

14. I have included the wife’s superannuation of $34,900 in a single list of property, given that relatively modest amount.  In terms of that fund and in terms of contributions, I had regard to the creation and accumulation of that fund subsequent to the wife’s return to Australia in 1999.  This was about seven years or so before and after separation.

15. In terms of these factors I have had regard to the circumstance of the wife’s age and that the sum is not available to her until she retires, many years into the future.

DETERMINATION

1. The factual base to this dispute is not without complexity.

2. At the start of cohabitation the husband had some US savings bonds, the value of which at that time is not clear.  I have not accepted the veracity of his evidence as to the value of those bonds, but I do accept that it was between $(US)14,000 and $(US)150,000.

3. He had resources in terms of his developing entitlement to a US Government Agency Pension after about eighteen years or so employment.

4. From 1989 to 1999 he accumulated significant money by frugal living, good saving and hard work.  As at 2000 he had sufficient funds to acquire a home with a value of $198,000 without a mortgage, and retain and perhaps acquire savings bonds.

5. I am satisfied that he has provided modest financial support for the wife and children until May 2007.  The father provided some support for his other family.  I am also satisfied that the wife’s family provided significant support to her and the children as set out earlier, and included accommodation money, painting and the like.

6. At the same time the wife was the primary child carer and homemaker throughout the marriage and more often than not without the presence of the husband.

7. The wife has paid or incurred legal cost expenses of about $400,000 and given the proceedings outlined earlier, these are not unexpected.  The legal costs incurred by the husband are opaque both in respect of the Australian proceedings and the US proceedings.  The wife had had access to about $400,000 of family funds to meet those expenses.  The husband has spent upwards of at least $70,000 and probably tens of thousands of dollars more.  He has spent considerable funds in legal fees in the United States; his evidence in that regard was also opaque.

1. The husband has the benefit of his government agency entitlements and it seems that he is physically well but is much older than the wife.  He has not re-partnered.  The wife has re-partnered and is able to work and earn income.  She has a relatively modest superannuation saving, which she is not able to access for many years.  The children of the parties are relatively self-sufficient.

2. The husband’s pension is not property but is a valuable financial resource to him.   

3. Given all of the findings, relative to the parties’ respective contributions and their future needs and the like, I consider that such property as is left should be divided equally. 

4. The pool of property amounts to $522,669 of which $109,955 is property of the wife and $412,714 is property of the husband.

5. I am satisfied that it is just and equitable to adjust property pursuant to the provisions of the Act, given the facts and findings discussed earlier. I am satisfied that in all of the circumstances that it is just and equitable to divide the property equally, which means $261,334.50 for each of the husband and the wife.

6. Given that determination I will order that the husband pays to the wife the sum of $151,379.50.  As the husband has much of his property in the United States, I will allow him sixty days to pay this amount, and I will so order.

OTHER ORDERS

1. One of the orders sought by the wife in final submissions was the return to her of her private psychiatric material.  Part of that material is attached to the affidavit of the husband sworn 21 May 2008.

2. Some of that material will remain as part of the court record.  There can be no other reason why the husband should have access to the wife’s private and personal medical material.

3. The wife also sought an order that the husband return to her the original and any copies of the power of attorney which she executed in 2003 whilst in the United States.[85]

   [85] Exhibit H8 pages 28 to 32.

4. The wife submitted reasons in support of this order and said she was concerned that the husband may inappropriately use that document given the proceedings which had been commenced in both of their names in the United States and given her lack of trust in the husband.

5. The power of attorney, on its face, provided that it would have full force and effect until 4 December 2014 unless sooner revoked.[86]  The husband said that this was his document.  When it was pointed out that the document was revoked he said that there were many copies and he did not know where they were.

   [86] At page 31.

6. Given the wife’s concerns I can see no reason why the husband should retain this now revoked power of attorney, it is a document of the wife not of the husband and it is now revoked.

7. The husband seeks return of the wife’s government agency identification card.  The wife does not seem to oppose that order.  There is no evidence that this card is the property of the husband, if anything the evidence is that it is property of the United States Government.  There is no evidence of its value.  I will order its return to the US Consulate in Melbourne.

8. The husband seeks some sort of indemnity in relation to the proceeds of the litigation in the United States.  The wife is no longer a willing participant in that litigation, if she ever was.  She took on some part of the proceedings at the request of the husband during their relationship.  The wife seeks orders in relation to indemnity from that litigation in which she is involved, given the facts in this case that indemnity is reasonable.  The husband would naturally retain the fruits of such litigation.

I certify that the preceding four hundred and sixty (460) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Benjamin delivered on 10 February 2015.

Associate: 

Date:  10 February 2015