Gironda & Connor - [2022] FedCFamC2F 936

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Gironda & Connor [2022] FedCFamC2F 936

File number: MLC 7888 of 2020

Judgment of: JUDGE O'SHANNESSY

Date of judgment: 15 July 2022

Catchwords: FAMILY LAW – property and financial matter – proceeded undefended – husband unemployed – respondent wife did not participate – second respondent company found to be wife’s alter ego and added to the proceedings – short relationship of the parties – just and equitable to make an order – nondisclosure – 7.5 per cent contribution assessment – disparity of assets and income – 10 per cent section 75(2) adjustment.

Legislation:
Family Law Act 1975 (Cth) ss 75, 79, 80, 117

Federal Circuit Court Rules 2001 (Cth) rr 24.01, 24.02, 24.03, 24.04

Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) rr 1.04, 1.33, 3.01, 3.05, 6.01, 6.06

Cases cited:
An & Zhu (2006) FLC ¶93-257

Aon Risk Services Australia Ltd v ANU (2009) 239 CLR 175

Chang & Su (2002) FLC 93-117

Chang v Su [2002] HCA Trans 549

Hickey and Hickey and the Attorney-General [2003] FamCA 395; (2003) FLC 93-143

Keskin & Keskin and Anor [2019] FamCAFC 236; (2019) FLC 93-932

Kingston & Field (No.2) [2020] FamCAFC 235

Ramsay v Ramsay (1997) FLC 92-742

Singam & Moffrey (2015) FLC 93-641

Queensland v JL Holdings Pty Ltd (1997) 189 CLR 146

Zane & Allan (2008) FLC 93-378

Division: Division 2 Family Law

Number of paragraphs: 116

Date of last submissions: 6 April 2022

Date of hearing: 6 October 2021

Place: Melbourne

Counsel for the Applicant: Ms A Finemore

Solicitor for the Applicant: Leslie Family Law

Solicitor for the Respondents: No Appearance
ORDERS

MLC 7888 of 2020

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:
MR GIRONDA

Applicant

AND:

MS CONNOR

Respondent

ORDER MADE BY:

JUDGE O'SHANNESSY

DATE OF ORDER:

15 JULY 2022

THE COURT ORDERS THAT:
1.Within 60 days of the date of these Orders, the Wife, Ms Connor (‘the Wife’), do all acts and thing to cause and ensure payment to the Husband, Mr Gironda (‘the Husband’), as follows:
(a)$78,700 by way of final property settlement (‘the payment’); and
(b)$14,592 by way of costs (‘the costs order’).

2.In the event the Wife fails to comply with Order 1, then the Wife and the Second Respondent B Pty Ltd (‘the company’) do all acts and things to cause the property at C Street, Suburb D (‘the C Street, Suburb D unit’) be placed on the market for sale and the following conditions shall apply:
(a)the Wife and the company shall be at liberty to choose the identity of and appoint the selling agent and conveyancer, save that if not done within 30 days, then the Husband (or his solicitor) shall choose the selling agent and the conveyancer; and
(b)unless agreed and subject to the rights of the mortgagor, the sale price and conditions shall be determined by the selling agent; and
(c)the selling agent shall advise both the Wife, the company and the Husband (or their solicitors) of any offers received, and in the event the Wife and/or the company does not accept an offer over and above the sale price determined pursuant to the proceeding subparagraph, then the Husband (or his solicitor) be at liberty to accept such an offer;
(d)the sale proceeds be applied as follows:
(i)firstly, to the payment of all costs, commission and expenses of the sale;
(ii)secondly, to discharge the mortgage including arrears, if any;
(iii)thirdly, the sum of $78,700 be paid to the Husband together with interest calculated in accordance with the Family Law Rules;
(iv)fourthly, the sum of $14,450 be paid to the Husband in satisfaction of the costs order;
(v)lastly, the balance to the Wife.

3.In the event the C Street, Suburb D unit is to be sold pursuant to these Orders, the Wife and/ or the company shall sign all documents and do all things necessary to facilitate the sale, and in the event the Wife and/ or the company does not sign such documents within 7 days of a request to do so:
(a)The Husband shall have leave to apply to a Registrar of this Court requesting that pursuant to section 106A of the Family Law Act 1975 (Cth), a Registrar of the Court shall sign all documents necessary in the name of the Wife and/ or the company to effect the sale; and
(b)In order to comply with the requirements of PEXA, the Husband shall nominate a solicitor other than his family law solicitor, who is authorised to sign documents for PEXA transfers and such solicitor sign on behalf of the Wife and/ or the company upon written request from the Husband’s solicitor to do so upon provision of a sealed copy of these Orders.

4.Unless otherwise specified in these orders and save for the purposes of enforcing any monies due under these or any subsequent orders:
(a)each party be solely entitled to the exclusion of the other to all superannuation and other property (including choses-in-action) owned by or in the possession of such party as at the date of these orders;
(b)insurance policies remain the sole property of the owner named therein;
(c)each party be solely liable for and indemnify the other against any liability encumbering any item of property to which that party is entitled pursuant to these orders; and
(d)any joint tenancy of the parties in any real or personal estate is hereby expressly severed.

5.Liberty to apply as to the implementation of these orders.
6.The parties are at liberty to provide a copy of these orders to the C Street, Suburb D unit mortgagee, the ANZ Bank.
7.The Husband do all acts and things to serve a copy of these orders on the Wife by email and the company by email and post.
8.All extant applications are otherwise dismissed.

Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under a pseudonym Gironda & Connor has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
JUDGE O’SHANNESSY
BACKGROUND

The Applicant husband, Mr Gironda (‘the Husband’), is aged 49, is unemployed and now lives in Country E. The Respondent wife, Ms Connor (‘the Wife’), is aged 61 and is a company director. The Second Respondent, B Pty Ltd, is a company controlled by the Wife (‘the company’) that owns a residential property in Melbourne, the subject of the proceedings. The parties' commenced cohabitation in 2016, married in 2017 and separated in January 2019. The Husband issued an application seeking property settlement and maintenance on 21 July 2020. The matter came on for hearing before me on 23 September 2021 when neither the Wife nor a representative of the company attended. The Husband attended by video link and he was represented by counsel.
The questions I must answer in these proceedings are as follows:
·Should I proceed to determine the Husband's application for property settlement and spousal maintenance in the absence of the Wife and the company, that is known as “undefended”.
·If I should determine the proceedings in the absence of the Wife and the company, is it just and equitable to make a property settlement order and if it is what should the dimension of that property settlement order be?
·If I do not make a property settlement order should I make a lump sum maintenance order as sought by the Husband.
Whether to Proceed Undefended
Turning to the first question, there is no doubt that the Wife was at all material times aware of the proceedings. The Husband's initiating application was issued in the Family Court of Australia on 21 July 2020 with a first return on 8 October 2020 for what was then known as a Case Assessment Conference or what can be described as a directions hearing or a triage hearing of the application. That Case Assessment Conference was to be conducted electronically because of the COVID-19 pandemic.
The Husband's solicitor attempted to personally serve (or hand to) the Wife a copy of the initiating application, financial statement of the Husband and the other information documents required to be served upon the Respondent by the then rules of the Family Court of Australia. The process server, a Ms F, armed with a photograph of the Wife and, I infer, knowledge of her likely residential address being C Street, Suburb D Victoria (‘the C Street, Suburb D Unit’) and her likely place of business being G Street, Suburb H (‘the G Street, Suburb H premises’) attempted to provide sealed copies of the documents described above by visiting at the C Street, Suburb D Unit on five occasions between the 29 July 2020 and the 19 August 2020 and by visiting the G Street, Suburb H premises on four occasions between 8 August 2020 and 19 August 2020. The process server was unable to speak to the Wife on these occasions.
On most occasions the process server was able to speak to a person at each premises and request that the Wife contact her. She never did.
Notwithstanding those nine attempts at personal service the Husband's solicitor, Ms Leslie, on 6 October 2020 at 4:14pm, sent an email to the Wife at an email address of the Wife, provided by the Husband, that said, omitting formal parts, as follows:
We confirm we act on behalf of your husband, Mr Gironda, in Family Court proceedings scheduled for case assessment conference this Thursday 8 October 2020 at 11am.
We attach correspondence and a minute of proposed orders for your urgent attention.
We encourage you to obtain legal advice in response to this correspondence and to have your representative contact the writer forthwith.
You should otherwise make arrangements to appear yourself at the Conference on Thursday.
On 23 September 2020 solicitors for the Husband lodged a caveat (number #...) on behalf of the Husband over the title to the C Street, Suburb D Unit (see exhibit H5 being title search produced on 23 September 2021) and on 6 October 2020 sent a letter to the Wife's email address that included the following statements:
…We anticipate that the proceedings will be granted a short adjournment to allow us to serve you as proposed in the minute. Once satisfied that you had been served with the Court documents, the Court has the capacity to make orders altering your financial interests in your absence.
We advise that, to protect our client's interests, we have caused the caveat to be lodged on the property registered in your name at [the C Street, Suburb D unit]. We expect you should receive advice from the Land Titles Office via post, if you have not already, confirming this.
We again urge you to obtain independent legal advice and/or appear at the hearing listed this Thursday, by dialling into the Microsoft Teams hearing at 11:00am on the link provided to you by email [from the Registrar] dated 23 September 2020.
Should you obtain independent legal advice, we would welcome your representative contacting the writer as soon as practicable to discuss this matter.
On the morning of the Case Assessment Conference at 10:28am the Husband's solicitor received an email from the email address to which the email recited above had been sent. That email said the following:
I cannot find the meeting instructions. Can you help me please?
I understand that assistance was provided and in any event shortly after that email the Wife appeared electronically before the Registrar conducting the Case Assessment Conference.
As a result of that appearance the following orders were made:
IT IS ORDERED THAT:
1.        The requirement for personal service be dispensed with.
2.The husband effect service on the wife by forwarding to the wife, no later than 4.00pm this day, the husband’s Initiating Application and Financial Statement both filed 21 July 2020, by email to [the Wife's email address].
3.The respondent wife file and serve by 20 November 2020 a Response to Initiating Application and Financial Statement.
4.        No later than the 20 November 2020 the husband produce to the wife:
a)if not already exchanged a copy of all the documents mentioned in Rule 12.02;
b)        the following documents:
i.that support the information contained in the Financial Statement;
ii.any inheritances, gifts or compensation payments received during cohabitation;
iii.any purchase or disposal of property in the 12 months prior to and since separation;
iv.       any increase or reduction of liabilities since separation;
v.the value of any superannuation interest of a party, including the basis on which the
vi.value has been calculated and any documents used to calculate the value
5.        No later than the 20 November 2020 the wife produce to the husband:
a)        Her personal Income Tax returns for the last 3 years;
b)The Income Tax Returns for the last 3 years of any company/business in which the wife has an interest;
c)The Trust Deed in relation to any Trust in which the wife has interest, together with the Trust Tax Returns for the last 3 years;
d)        The last Tax Return for the wife’s self-managed superannuation fund;
e)Statements for any bank account in the wife’s name, or accounts over which she has control (such as business/company accounts) for the last 12 months;
f)        Evidence of any tax liability owing to the ATO.
6.All applications be adjourned to a Case Assessment Conference on 10 December 2020 at 2.15pm.
In the circumstances of the repeated attempts at personal service it is unsurprising and entirely appropriate that the Wife, the respondent to the proceedings, be ordered to be served with the necessary documents by email to her known email address. From the affidavit of service of the Husband’s solicitor filed 21 April 2021, it is clear that on 8 October 2020 the Husband’s solicitor, as ordered, sent the Husband's initiating application filed 21 July 2020 and the Husband's financial statement sworn by him on 20 July 2020 together with a letter dated 8 October 2020 to the Wife by email to the address from which she had responded on the morning of the Case Assessment Conference at 10:28am and the email address was recited in the order of 8 October 2020 [the Wife's email address].
The letter sent by email to the Wife's email address included the following:
…
We confirm you are to file responding material and provide discovery by Friday, 20 November 2020. The matter has been adjourned for a further Conference to be held on Thursday, 10 December 2020 at 2:15pm, to allow you time to do so.
As you advised the Registrar this morning, we understand you intend to engage a solicitor to assist you in this matter. We welcome your legal representative contacting the writer to discuss the future conduct of this matter at the earliest convenience, once appointed by you.
A solicitor instructed by the Wife never contacted the Husband’s solicitor. The date for the filing of documents specified in the order of 8 October 2020 came and went without any further communication from the Wife. She did not file any documents as she was ordered to do. She did not provide any discovery of documents as she was ordered to do.
Notwithstanding the failure to comply with the orders and the discourtesy of the failure to reply or acknowledge the Husband's solicitors letter email to her, the Husband's solicitor again wrote to the Wife and sent the letter by email to the Wife's email address on 26 November 2020 where the Wife was reminded that she was due to filed documents in the proceedings by 20 November 2020 and that the proceedings were listed for a further case conference on 10 December 2020. The Wife was also cautioned as follows:
…
… To avoid costs orders being made against you or our client seeking to proceed undefended, we ask you give this matter your urgent attention.
We look forward to hearing from you.
On 8 December 2020, not 20 November 2020 as ordered, that is two days before the further Case Assessment Conference was due, the Husband's solicitor sent to the Wife's email address a bundle of documents relating to the Husband's financial circumstances advising that the Husband held no superannuation entitlements and no assets of value. The letter enclosing the documents also again cautioned the Wife as follows:
…
To avoid costs orders being made against you in these proceedings, we once again ask you to urgently engage a solicitor and have them contact our office prior to Thursday's hearing.
On 10 December 2020, the second or further Case Assessment Conference proceeded before the same Registrar as the first Conference on 8 October 2020 where the Wife had appeared electronically. The Wife did not appear nor provide any communication explaining her absence.
On 10 December 2020 an order was made that the parties together with their lawyers attend a conciliation conference with a Registrar on 29 March 2021 at 9:15am. An order was made to reserve the Husband's costs in the sum $500 to the conciliation conference.
Further orders were made as follows:
…
8. The wife appear personally at the conciliation conference.
9.The wife’s time to comply with Order 3 made on 8 October 2020 is extended to 27 January 2021.
10.The wife’s time to comply with Order 5 made on 8 October 2020 is extended to 27 January 2021.
11.The Applicant’s lawyers serve a copy these Orders on the wife by email to [email …] no later than 4.00pm on 11 December 2020.
AND THE COURT NOTES
A.In the event that the wife does not comply with these Orders and/or fails to attend the Conciliation Conference, the husband’s lawyer intends to request that the matter be listed forthwith for an undefended hearing.
B.The wife did not participate in the Case Assessment Conference this day. The Court had sent her the invitation to the conference at an email address provided by her at the last hearing. Additionally the Registrar attempted to telephone the wife at 2.18pm, 2.33pm and 2.38pm and on no occasion did the wife answer the call. The matter then was finalised in her absence.
C.The husband resides in [Country E] but will be available to participate in the conciliation conference by electronic means.
Hence on 10 March 2020 the Wife was specifically ordered to attend on 29 March 2021.
On 11 December 2020 the Husband’s solicitor emailed a letter and the orders made on 10 December to the Wife at her email address. The letter included the following statements:
…
Due to your nonparticipation, interim orders were made in your absence.
…
Once again, we urge you to obtain independent legal representation in relation to these proceedings and to have that representative contact our office as soon as practicable. Our client remains hopeful that, with your participation in these proceedings, an amicable and efficient resolution can still be achieved.
On 21 January 2021, that is shortly before the now extended date for the Wife to file documents, the Husband’s solicitor again courteously wrote to the Wife by email to her email address and reminded her of the new date, 27 January 2021 for her to file the necessary documents to participate in the proceedings and to make proper disclosure of her financial affairs as is required by law.

The orders of the 8 October 2020 and 10 December 2020 were again attached to the email, and I infer, for easy reference by the Wife. That email went on to state as follows:
The orders of 10 December 2020 indicate that if you do not comply with the above by 27 January 2021, we will be requesting that the proceedings be listed for an undefended hearing of our client’s application.
At that undefended hearing, orders could be made against you which impact upon your financial interests, in favour of our client.
We therefore reiterate our previous request to you that you obtain independent legal representation in relation to the proceedings, and have that representative contact our office as soon as practicable.
(emphasis as in the original)
On 24 March 2021 the Husband’s solicitor appeared before the Registrar at the conciliation conference and there was no appearance by or on behalf of the Wife.
On that day the matter was transferred to the Federal Circuit Court (now Division 2 of this Court) and the time for the filing of documents by the Respondent was again extended to no later than 12 May 2021 and further orders including the following were made:
…
4.No later than 29 March 2021 the Applicant serve a sealed copy of this order on the Respondent by email to her last known email address.
5.The Respondent appear and/or be represented on the first date that this matter is before the Federal Circuit Court, noting that should she fail to do so and/or fail to comply with these orders, then the Applicant intends to seek leave to proceed on an undefended basis, with his application filed 21 July 2020.
…
On 29 March 2021 the Husband’s solicitor emailed a letter to the Wife at her email address and omitting formal parts the letter stated as follows:
…
We refer to the Directions Hearing held in this matter before the Family Court on Wednesday 24 March 2021. Once again, and notwithstanding previous Orders, you failed to attend.
We enclose by way of service Orders made by the Court in your absence.
You will note that Order 5 of the Orders requires you to either appear personally or be represented at the next hearing in this matter, failing which our client shall seek to proceed on an undefended basis.
The next hearing is now fixed for 26 May 2021. To avoid the Court making undefended Orders, including an Order for the sale of the [C Street, Suburb D] property, you should ensure that you comply with all previous Orders and the enclosed Orders.
Once again, we urge you to obtain legal advice in this matter. Please have your solicitor contact the writer forthwith.
…
(emphasis as in the original)
On the transfer from one court to another (what is now Division 1 to Division 2 of this Court) yet a further directions hearing was organised and notice given to the parties. That hearing took place on 26 May 2021. The Father appeared by his solicitor and there was no appearance by the Wife.
Orders made that day adjourned all extant applications to a "possible undefended hearing" on 23 September 2021 at 10:00am. The matter was also adjourned to 11 August 2021 at 11:30am for a procedural hearing, and I infer, for the purpose of vacating the 23 September 2021 undefended hearing in the event that the Wife had complied with Court orders and/or appeared and indicated a desire to participate in the proceedings. The consequence of these orders means that the Wife was given yet another opportunity to participate in the proceedings and comply with her duty of disclosure of financial information to the Husband. From the affidavit of the Husband's solicitor filed 18 August 2021 (a detailed affidavit of service and communications with the Wife) I am satisfied that on 31 May 2021 the Husband’s solicitor sent a copy of the orders of 26 May 2021 (which provided for the possible undefended hearing on 23 September 2021) and notice of the directions hearing on 11 August 2021 to the Wife's email address along with a letter which included the statement:
…
If you do not file your Court documents and do not appear before the court on 11 August 2021, our client will be able to proceed on 23 September 2021 on an "unopposed basis". This means that he can ask the Court to make orders in his Amended Initiating Application. It is therefore highly likely that if you do not participate in these proceedings, Orders will be made on 23 September 2021 which will significantly alter your financial interests, to your detriment.
We once again urge you to turn your attention to this matter, and to urgently obtain legal advice in relation to it, to avoid Orders being made as foreshadowed herein.
…
From the same affidavit I am satisfied that the Husband's solicitor telephoned the Wife on her mobile telephone number on 18 June 2021 and attempted to identify herself as the solicitor in the proceedings for the Husband. Following that call, on that day, the Husband's solicitor sent a text message to the Wife's mobile phone (the 18 June 2021 text message) alerting her to the hearing on 11 August 2021 and again requesting that she seek legal advice and alerting her as follows:
…
If you or a lawyer on your behalf failed to attend [the 11 August 2021] hearing, our client will be given leave to seek unopposed Orders.
…
Because of the Wife's failure to participate in the proceedings there was no opportunity for the parties to explore whether they actually agreed to the value of the dwelling asserted to be where the Wife lived and asserted to be subject to the proceedings. In those circumstances the Husband's solicitor obtained a valuation of the premises by an appropriate qualified valuer. The report of that valuation together with a letter was sent by email to the Wife's email address.
I accept that on 9 August 2021 the Wife sent a text message to the Husband's solicitor stating as follows:
I have only just read your message this morning. I don't have a lawyer because I don't have any money to pay for one. I am working through insolvency of my company business and it is very difficult for me to maintain stable mental health. What [Mr Gironda] et al are doing is fraudulent and will become apparent. I'm sorry but I can't do anything more this time I really just can't.
On the same day the Husband’s solicitor responded by text message to the Wife's mobile phone alerting her to the proceedings being listed on the coming Wednesday, 11 August 2021 at 9:30am and providing advice that the matter is proceeding by telephone and providing the number to call and the passcode to be heard in the hearing. The Wife was asked to provide details of an insolvency trustee if there was one. On the day before the directions hearing an email was sent to the Wife's email address again alerting her to the hearing on the morrow and providing the "Teams" link for the hearing.
On the morning of the directions hearing the Husband’s solicitor sent an email to the Wife's email address another email that should have alerted her to the looming hearing.
The Wife did not further reply to any of the text message or email communications and did not appear at the directions hearing before a Registrar on 11 August 2021. The Court order has attached to it the notation that recited as follows:
B.The respondent did not attend court today and is not filed any court documents. The orders requiring the respondent to file a response, financial statement and affidavit remain in full force and effect if the respondent does not comply with those orders or attend court on 23 September 2021, then the court may decide how to divide the parties' assets and liabilities without the respondent's participation.
On 17 August 2021, the Husband's solicitor sent to the Wife's email address a sealed copy of the amended initiating application filed on 11 August 2021 that had been omitted from the email sent that day. That glitch was remedied.
Significantly, that amended initiating application made clear that the Husband no longer sought a payment from the Wife in the sum of $250,000 but $100,000 (‘the payment’) and that in the event the Wife failed to comply or make that payment, then the C Street, Suburb D Unit be sold and after discharge of mortgage and payment of selling expenses, the payment be made to the Husband with the balance of the proceeds to be paid to the Wife.
From the affidavit of the Husband’s solicitor filed on the day of the hearing, 23 September 2021 I am satisfied that on the Friday before the hearing, a letter setting out the Microsoft Teams link and telephone number for the Wife to participate in the proceedings that must have reminded her of the hearing on the coming Monday was emailed to the Wife's email address. On the morning of the hearing at 8:15am an outline of case that included the precise orders that would be sought that day was sent to the Wife's email address.
The matter remained listed on 23 September 2021 and was listed before me on that day. Counsel appeared on behalf of the Husband and there was no appearance on behalf of the Wife.
By the careful and detailed submissions and reference to the events described above counsel satisfied me that not only had the Wife had notice of the proceedings and the opportunity to participate but that the Husband solicitors had gone to a lot of trouble and expense to ensure that the Wife had repeated notice and many opportunities to participate in the proceedings and provide the financial documents and information necessary for her to comply with her duty of disclosure of financial information to the Court and to the Husband. The Husband's solicitor had, in colloquial terms, begged the Wife to participate in the proceedings over and over. The communications and provision of evidence, applications, amended applications and outline of case to the Wife are, or should be, a textbook example of helpful and courteous communication to a litigant in person that satisfies the Court that the necessary, but nonetheless Draconian, step of proceeding in the absence of a necessary party to the proceedings was and is procedurally fair and just.
Proceeding Undefended
From time to time a party seeks an undefended hearing of his or her application for final orders. This is the usual and not unreasonable response to a failure by the other party to appear before the Court or failure to file and serve documents in support of his or her case or to contradict the other party’s case or a failure to comply with his or her duty of disclosure of all relevant documents and information or a failure to comply with the rules or orders of the Court as to how the dispute between the parties would be resolved.
In the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) rules exist to expedite resolution of disputes and those rules (notes omitted) include:
Rule 1.04        Overarching purpose
(1)The overarching purpose of these Rules, as provided by section 67 of the Federal Circuit and Family Court Act, is to facilitate the just resolution of disputes according to law and as quickly, inexpensively and efficiently as possible.
(2)Parties to family law proceedings must conduct the proceeding (including negotiations for settlement of the dispute to which the proceeding relates) in a way that is consistent with the overarching purpose.
(3)A party’s lawyer must, in the conduct of a proceeding before the court (including negotiations for settlement) on the party’s behalf:
(a)take account of the duty imposed on the party referred to in subrule (2); and
(b)       assist the party to comply with the duty.
…
Rule 1.33        Failure to comply with a legislative provision or order
(1)If a step is taken after the time specified for taking the step by these Rules, the Family Law Regulations or a procedural order, the step is of no effect.
(2)If a party to a proceeding does not comply with these Rules, the Family Law Regulations or a procedural order, the court may do any of the following:
(a)       dismiss all or part of the proceeding;
(b)       set aside a step taken or an order made;
(c)       determine the proceeding as if it were undefended;
(d)       order costs;
(e)prohibit the party from taking a further step in the proceeding until the occurrence of a specified event;
(f)make any other order the court considers necessary, having regard to the overarching purpose of these Rules (see rule 1.04).
(emphasis added)
In Zane & Allan (2008) FLC 93-378 the majority point out that even in the event of default of a party complying with Court directions and rules there is a discretion to be exercised as to whether or not a final hearing should proceed as undefended. Of significance in finding that the discretion had miscarried the majority observed that the recalcitrant and noncomplying Husband had filed some material and sought to participate in the hearing and that there were significant factual and legal issues that require hearing. There is no such controversy here.
Singam & Moffrey (2015) FLC 93-641 (‘Singam’) the primary judge proceeded to hear a matter undefended after a party had failed filed documents in accordance with the rules of the Court and had not attended a court ordered conciliation conference. That litigant in person had attended to directions hearings by telephone but was required to attend a further hearing in person but on the day of the hearing requested to appear by telephone. The request was denied.
In that case the Full Court regarded the primary judge as proceeding under the fault provisions of Division 13.1A of the old rules and observed at [43-44]:
43.The exercise of the relevant discretions occurs within an important statutory and regulatory framework. The Federal Circuit Court “… must proceed without undue formality and must endeavour to ensure that the proceedings are not protracted” (s 42 Federal Circuit Court of Australia Act 1999 (Cth)). The Court may “… dispense with compliance, or full compliance …” with any of the Rules (r 1.06) consistent with specified objects of the Rules to “… operate as informally as possible” and to “use streamlined processes” (r 1.03(2)). The Court “will apply the Rules in [80183] accordance with their objects” (r 1.03(3)) and “must … avoid undue delay, expense and technicality” (r 1.03(4)).
44.That framework is rendered all the more important when litigants represent themselves. As is evident, the court has wide powers to frame proceedings and procedural requirements consistent with the interests of justice and the proper interests of both parties. Judgment by default is a remedy that results from a conclusion that the interests of justice require one party to be denied an important right; to have their case heard, even if considered weak or misguided. Frequently, other orders, including procedural orders shaped to fit the particular circumstances of the case, should be preferred.
The appeal was allowed on the basis that the exercise of the discretion to proceed undefended had miscarried.
In considering whether to proceed undefended or not both sides of the matter must be had regard to. The Father had prepared for hearings and complied with orders and directions of the Court. As May J, in dissent as to the result of appeal in Zane & Allan, observed correctly and concisely:
[190]First it would be wrong in this case to lose sight of the fact that there are two parties to this dispute. The wife is entitled to have her application filed 1 September 2000 heard.
In Aon Risk Services Australia Ltd v ANU (2009) 239 CLR 175, a High Court appeal relating to a very late application for amendment of pleadings and adjournment in a commercial case, the majority observed:
[98] … Speed and efficiency, in the sense of minimum delay and expense, are seen as essential to adjust resolution of proceedings.
It is these principles and the facts of the individual case which must be balanced in determining the course of litigation where one party has not complied with Court directions yet seeks to have his or her case heard and evidence considered in the final determination of the dispute.
The Full Court of the Family Court in An & Zhu (2006) FLC 93-257 set out why Family Law Act 1975 (Cth) applications cannot lead to a 'judgment by default':
[66]The term undefended proceedings was also referred to in Lanceley and Lanceley (1994) FLC 92-491. The Full Court considered the position of a respondent who took no active part in proceedings. Barblett DCJ, Frederico and Lindenmayer JJ said at 81,104:
…Unlike some other jurisdictions, such a circumstance does not and cannot lead, in this Court, to a 'judgment by default' in favour of the applicant, because the Court must still decide, on the evidence before it, that the applicant is entitled, in law, to the relief claimed and that, in the exercise of its discretion, it is appropriate to grant that relief…
Conclusion as to undefended hearing
I am satisfied that it is appropriate to proceed on an undefended basis.
WIFE'S NON-DISCLOSURE
When the proceedings commenced in 1 September 2021 the Federal Circuit Court Rules 2001 (the old rules) applied to the proceedings. As a respondent to an application for property settlement and by reason of having being ordered to do so, the Wife was required to and should have filed a financial statement (see then Rule 24.01-02). The then applicable rules of Court provided for full and frank disclosure by parties to proceedings in relation to financial matters. Rules 24.03 and 24.04 of the old rules applied and were as follows:
Rule 24.03      Full and frank disclosure
(1)A party required under this Part to file a financial statement or affidavit of financial circumstances must make in the statement or affidavit a full and frank disclosure of his or her financial circumstances, including details of:
(a)any vested or contingent interest in property (including real or personal property, superannuation and legal and equitable interests); and
(b)income from all sources, including any benefit received in relation to, or in connection with, the party's employment or business interests; and
(c)the party's other financial resources; and
(d)any trust:
(i)of which the party is, or has been since the separation of the parties, the appointor or trustee; or
(ii)of which the party, or the party's child, spouse or de facto partner is, or has been since the separation of the parties, an eligible beneficiary as to capital or income; or
(iii)of which a corporation is an eligible beneficiary as to capital or income if the party, or the party's child, spouse or de facto partner is, or has been since the separation of the parties, a shareholder or director of the corporation; or
(iv)over which the party has, or has had since the separation of the parties, any direct or indirect power or control; or
(v)of which the party has, or has had since the separation of the parties, the direct or indirect power to remove or appoint a trustee; or
(vi)of which the party has, or has had since the separation of the parties, the power (whether subject to the concurrence of another person or not) to amend the terms; or
(vii)of which the party has, or has had since the separation of the parties, the power to disapprove a proposed amendment of the terms or the appointment or removal of a trustee; or
(viii)over which a corporation has, or has had since the separation of the parties, a power mentioned in subparagraphs (iv) to (vii), if the party is a director or shareholder of the corporation; and
(e)any gift or other disposition of property made by the party since the separation of the parties; and
(f)if there is a partnership, trust or company (except a public company) in which the party has an interest, copies of the 3 most recent financial statements and the last 4 business activity statements lodged by the partnership, trust or company.
Rule 24.04Production of documents (proceeding other than for maintenance only)
(1)Unless the Court or a Registrar otherwise orders, a party required under this Part to file a financial statement or affidavit of financial circumstances (other than a respondent in a proceeding for maintenance only) must serve on each other party who has an address for service in the proceeding the following documents:
(a)       copies of the party's 3 most recent taxation returns;
(b)       copies of the party's 3 most recent taxation assessments;
(c)       if the party is a member of a superannuation plan:
(i)if not already filed or exchanged--the completed superannuation information form for any superannuation interest of the party; and
(ii)for a self-managed superannuation fund--the trust deed and copies of the 3 most recent financial statements for the fund;
(d)if the party has an Australian Business Number, copies of the last 4 business activity statements lodged;
(e)if there is a partnership, trust or company (except a public company) in which the party has an interest, copies of the 3 most recent financial statements and the last 4 business activity statements lodged by the partnership, trust or company.
(2)      The documents must be served within 14 days after the first court date.

On 1 September 2021, the Federal Circuit Court became Division 2 of the Federal Circuit and Family Court of Australia. September 2021 the Federal Circuit and Family Court of Australia (Family Law) Rules2021 applied. The rules under Part 6.1 of those rules applied to the parties' duty of disclosure. The rules under Part 6.1 were entirely consistent with, but not identical to, the old rules and in particular, Rules 24.03 and 24.04, but for the purpose of these proceedings there is no material difference between Rules 24.03-.04 and Rules 6.01 and 6.06.
The relevant current rules are as follows:
6.01     General duty of disclosure
(1)Subject to subrule (4), each party to a proceeding has a duty to the court and to each other party to give full and frank disclosure of all information relevant to the proceeding, in a timely manner.
Note:The proceedings to which the duty of disclosure applies include both parenting proceedings and financial proceedings. Failure to comply with the duty may result in the court excluding evidence that is not disclosed or imposing a consequence, including punishment for contempt of court.
(2)The duty of disclosure applies from the start of the proceeding and continues until the proceeding is finalised.
Note:Parties are also expected to comply with the duty of disclosure when complying with the pre-action procedures.
(3)The duty of disclosure also applies to a litigation guardian appointed under Part 3.5.
(4)This rule does not apply to a respondent to an application alleging contravention or contempt.
…
6.06Duty of disclosure—financial proceedings
(1)The duty of disclosure applies to a financial proceeding.
(2)Subrules (3) to (9) do not apply to a party to a property proceeding who is not a party to the marriage or de facto relationship to which the application relates, except to the extent that the party’s financial circumstances are relevant to the issues in dispute.
(3)Without limiting subrule (1), a party to a financial proceeding must make full and frank disclosure of the party’s financial circumstances, including the following:
(a)the party’s earnings, including income that is paid or assigned to another party, person or legal entity;
(b)       any vested or contingent interest in property;
(c)any vested or contingent interest in property owned by a legal entity that is fully or partially owned or controlled by a party;
(d)any income earned by a legal entity fully or partially owned or controlled by a party, including income that is paid or assigned to any other party, person or legal entity;
(e)       the party’s other financial resources;
(f)       any trust:
(i)        of which the party is the appointor or trustee; or
(ii)of which the party, the party’s child, spouse or de facto spouse is an eligible beneficiary as to capital or income; or
(iii)of which a corporation is an eligible beneficiary as to capital or income if the party, or the party’s child, spouse or de facto spouse is a shareholder or director of the corporation; or
(iv)over which the party has any direct or indirect power or control; or
(v)of which the party has the direct or indirect power to remove or appoint a trustee; or
(vi)of which the party has the power (whether subject to the concurrence of another person or not) to amend the terms; or
(vii)of which the party has the power to disapprove a proposed amendment of the terms or the appointment or removal of a trustee; or
(viii)over which a corporation has a power referred to in any of subparagraphs (iv) to (vii), if the party, the party’s child, spouse or de facto spouse is a director or shareholder of the corporation;
(g)any disposal of property (whether by sale, transfer, assignment or gift) made by the party, a legal entity referred to in paragraph (c), a corporation or a trust referred to in paragraph (f) that may affect, defeat or deplete a claim:
(i)in the 12 months immediately before the separation of the parties; or
(ii)since the final separation of the parties;
(h)       liabilities and contingent liabilities.
(4)      Paragraph (3)(g) does not apply to a disposal of property made:
(a)       with the consent or knowledge of the other party; or
(b)       in the ordinary course of business.
(5)A party starting, or filing a response or reply to, a financial proceeding (other than by an Application for Consent Orders) must file, at the same time:
(a)       a Financial Statement; and
(b)a financial questionnaire in the form approved by the Chief Executive Officer.
(6)If a party is aware that the completion of a Financial Statement will not fully discharge the duty to make full and frank disclosure, the party must also file an affidavit giving further particulars.
(7)If a party’s financial circumstances have changed significantly from the information set out in the Financial Statement or an affidavit filed under subrule (6), the party must, within 21 days after the change of circumstances, file:
(a)       a new Financial Statement; or
(b)if the changes can be set out clearly in 300 words or less—an affidavit containing details about the party’s changed financial circumstances.
(8)Without limiting subrule (1), unless the court otherwise orders, a party (the first party) who is required by this rule to file a Financial Statement (other than a respondent to an application for maintenance only) must, before the first court date, serve on each other party who has an address for service in the proceeding the following documents:
(a)       a copy of the party’s 3 most recent taxation returns;
(b)       a copy of the party’s 3 most recent taxation assessments;
(c)       if the first party is a member of a superannuation plan:
(i)the completed superannuation information form for any superannuation interest of the party (unless it has already been filed or exchanged); and
(ii)for a self-managed superannuation fund—the trust deed and a copy of the 3 most recent financial statements for the fund;
(d)if the party has an Australian Business Number—a copy of the last 4 business activity statements lodged;
(e)if there is a partnership, trust or company (other than a public company) in which the party has an interest—a copy of the 3 most recent financial statements and the last 4 business activity statements lodged by the partnership, trust or company.
(9)Without limiting subrule (1), a respondent to an application for maintenance only must bring to the court on the first court date the following documents:
(a)a copy of the respondent’s taxation return for the most recent financial year;
(b)a copy of the respondent’s taxation assessment for the most recent financial year;
(c)copies of the respondent’s bank records for the 12 months immediately before the date when the application was filed;
(d)       the respondent’s most recent pay slip;
(e)if the respondent has an Australian Business Number—a copy of the last 4 business activity statements lodged;
(f)any document in the respondent’s possession, custody or control that may assist the court in determining the income, needs and financial resources of the respondent.
(10)This rule does not require a party to be served with a document that has already been provided to the party.
In Chang & Su (2002) FLC 93-117 (‘Chang & Su’) Kay & Dawe JJ, with whom Finn J agreed, observed as follows:
[67]The law to be applied and the approach that may be adopted in cases where, through the lack of a full and frank disclosure, the Court is unable to fully ascertain the extent of a party's wealth, is well settled (see Stein and Stein (1986) FLC ¶91-779; 11 FLR 353; Mezzacappa and Mezzacappa (1987) FLC ¶ 91-853; 11 FLR 957; Black and Kellner (1992) FLC ¶92-287; 15 FLR 343 and Weir and Weir (1993) FLC ¶92-338; 16 FLR 154).
…
[70]In Weir and Weir (1993) FLC ¶92-338; 16 FLR 154 the Full Court (Nicholson CJ, Strauss and Nygh JJ) dealt with an appeal against the refusal by the trial Judge to make orders in respect of unascertained property because he could not quantify it. The Court said at FLC 79,593:
It seems to us that once it has been established that there has been a deliberate non-disclosure, which follows from his Honour's findings in this case, then the Court should not be unduly cautious about making findings in favour of the innocent party. To do otherwise might be thought to provide a charter for fraud in proceedings of this nature.
Chang & Su was not an undefended case but one dealing with the reality of the nondisclosure by one of the parties in that case. But the observations remain apposite and may have even greater force where a party refuses to participate in the proceedings at all and refuses to make any disclosure of financial circumstances at all.
Leave to appeal from the Full Court decision in Chang & Su was refused by the High Court in Chang v Su [2002] HCA Trans 549 where Callinan J observed:
It does not matter what the principal might be said to be; a court has to do the best it can. It does the best it can, having regard to the evidence that is adduced and if the parties are not frank naturally there is going to be a measure of imprecision about any findings that the court can make.
Chang & Su and the chain of cases following that authority and those applied therein have been approved time and again by the Full Court of the Family Court including as recently as 24 September 2020 (coincidently the day after the caveat was lodged in this case) when the Full Court observed as follows in the case of Kingston & Field (No.2) [2020] FamCAFC 235:
[106]Under well established guidelines (Black and Kellner [1992] FamCA 2; (1992) FLC 92-287 at 79,133-79,134; Weir and Weir [1992] FamCA 69; (1993) FLC 92-338 at 79,592-79,595; Chang v Su [2002] FamCA 156; (2002) FLC 93-117 at [28]- [32], [57]-[72]), property settlement orders may make more generous provision for one party if it is inferred the other party improperly failed to fully disclose his or her financial affairs….. In this case the Wife has not disclosed her assets or her liabilities or her income or deficiency in her income if that is the case.
I am satisfied that the Wife has not provided to the Court and to the Husband the documents and information necessary for her to comply with her duty of disclosure of relevant financial information. I so find whether that duty whether as described in the old rules or the current rules or is simply described as a duty of full and frank disclosure of the documents and information necessary for the Court and the parties to have a proper understanding of the parties financial circumstances. That duty of disclosure applies whether or not a party has been ordered to provide financial documents and information. In this case the Wife was ordered to provide financial documents and information. She did not do so despite having repeated opportunities to comply with her duty of disclosure and the Court orders that reinforced that obligation.
The Husband's solicitors were able by subpoena of documents to obtain some limited information including extent of encumbrance by mortgage debt over the C Street, Suburb D Unit.
The Company
The Husband sought a property settlement payment (and later in the outline of case lump sum spousal maintenance) and in his amended initiating application sought orders that in default of payment that the C Street, Suburb D unit be sold and from the proceeds of sale the payment be made to him. Exhibit H5, the 23 September 2021 title search, showed the registered proprietor of the C Street, Suburb D Unit, from 5 May 2007, was a company, B Pty Ltd and that the property was encumbered by mortgage to the Australia and New Zealand banking group, being a mortgage registered on 6 May 2015 with the number #....
Exhibit H2, 23 September 2021, was a company search which showed that the Wife was the sole shareholder of the 12 issued shares in the company and one of two directors and the company secretary. The registered office and principal place of business of the company were recorded as being the C Street, Suburb D unit. I was told and accept that the other director of the company was the Wife's daughter.
Upon enquiry on the hearing before me it became apparent that the Husband put his case on the basis that the company was the alter ego or vehicle of the Wife. I raised the issue of whether it was necessary for the company to be joined to the proceedings. Persuasive submissions were made against that proposition, and without ruling on it, I adjourned the proceedings to 6 October 2021 2:15pm so at the very least the Wife, including in her capacity as a director of the company, could be put on notice of the alter ego submissions made.
On 27 September 2021 the Husband's solicitor's sent by email to the Wife's email address, but addressed to the Wife as a director of the company, all of documents relied upon by the Husband in the proceedings before me, the interim orders I made on 23 September 2021, notice that the adjourned hearing would resume on 6 October 2021 and a letter setting out "the company is the alter ego of you" argument or assertion. That letter and document were also sent by registered post, addressed to the Wife in her capacity as a director of the company to the registered address of the company, the C Street, Suburb D Unit.
That letter (exhibit -1 to the affidavit of Mr J of 4 October 2021) included the following assertions;
[on 23 September 2021] [i]t was also directed that [B Pty Ltd] be put on notice that it is not sought that they be joined as a party to the proceedings, despite Orders being made which would materially impact on financial interests held by the company. The reason why [the Husband] does not seek to join [B Pty Ltd] to the proceedings is founded upon his contention that you as the Respondent Wife and [B Pty Ltd] are in effect, "one and the same".
In addition to sending the letter by registered post and by email, on 27 September 2021, the Husband's solicitors sent by text message to the Wife's mobile phone a message that alerted her to the fact that the solicitors had that day emailed and posted to her a letter enclosing Court documents for her attention in her capacity as director of B Pty Ltd and alerting her to the proceedings being adjourned to 6 October 2021.
No reply was received. The matter returned to court on 6 October 2021 in a busy list with matters pressing to be heard and judgement was reserved.
Joining the Company
Part 3.1 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 came into operation on 1 September 2021 and Rule 3.01 and 3.05 provide as follows:
Rule 3.01        Necessary parties
A person whose rights may be directly affected by an issue in a proceeding, and whose participation as a party is necessary for the court to determine all issues in dispute in the proceeding, must be included as a party to the proceeding.
Example:If a party seeks an order of a kind referred to in section 90AE or 90AF of the Family Law Act, a third party who will be bound by the order must be joined as a respondent to the proceeding.
…
Rule 3.05        Party may apply to be removed
(1)A party to a proceeding may apply to the court to be removed as a party by filing an Application in a Proceeding.
(2)      The party must file an affidavit stating:
(a)       the relationship (if any) of the applicant to each other party; and
(b)       the evidence in support of the application.
(3)The party must serve a copy of the application and affidavit on each other party to the proceeding.
On 25 January 2022 I came to write the judgment and determined that despite the persuasive submissions of counsel for the Husband I should consider whether the company should be joined as a party to the proceedings in the circumstances where the company was the registered proprietor of the dwelling said to comprise the bulk of the matrimonial pool of assets and upon which the default orders would operate if the orders sought by the Husband were made.
On 25 January 2022 I ordered as follows:
THE COURT ORDERS THAT:
1.On or before 4:00pm on 8 February 2022 the Applicant file any short written submissions concerning whether or not [B Pty Ltd] should be:
(a) Joined to the proceedings as the Second Respondent; and
(b)Ordered to file any submissions or response within 30 days of being joined as the Second Respondent.
AND THE COURT NOTES THAT:
A.The alter ego submissions of the Applicant is acknowledged and has not been determined.
B. Judgment remains reserved.
…
As ordered, submissions were received from the Husband's solicitors. Those submissions repeated the contents of the 27 September 2021 letter referred to above, referred to the evidence that the Husband was impecunious, referred to the inordinate length of the proceedings and, in substance, submitted to the effect that, “we've been over this already and the Court should hurry up”. It was also submitted that the joining of the company to the proceedings would be futile and not advance the proceedings in any meaningful way but also stated:
19.Nevertheless, the Husband is not opposed to orders being made joining [B Pty Ltd] as the second respondent and requiring a [B Pty Ltd] to file any submissions or response within 30 days of being joined as the Respondent.
Notwithstanding the force of counsel for the Husband's submissions that in substance the company is the alter ego of the Wife and although the Wife is the only shareholder of the company and the Wife is one of two directors, the purpose and meaning of rule 3.01 is crystal clear. The company is the registered proprietor of the major asset that the Husband has been able to identify that he asserts should be included in the asset pool. Hence the company is a necessary party and must be included as a party to the proceeding.
I do not accept the submission that joining of the company to the proceedings would be futile. By the company being joined to the proceedings and being on notice of that fact the company is bound by any orders I make in the proceedings whether or not it is correct to characterise the company as the alter ego of the wife.
On 29 March 2022, I ordered in chambers, as follows:
THE COURT ORDERS THAT:
1.[B Pty Ltd] be added as a party to these proceedings and be known as the Second Respondent.
2.As soon as practical the solicitors for the Applicant serve upon the Second Respondent by registered post to the registered office of the Second Respondent the following documents:
(a)       The order of 8 October 2020.
(b)       The order of 26 May 2021.
(c)       The order of 25 January 2022.
(d)       This order.
(e)The amended outline of case of the Applicant as provided on 7 October 2021.
(f)       The third amended application filed 11 August 2021.
(g)       The submissions of the Applicant filed on 8 February 2022.
(h)The letter to the Respondent as director of [B Pty Ltd] dated 27 September 2021 (being annexure [-1] to the affidavit of [Mr J] filed 4 October 2021.)
3.As soon as practical the solicitors for the Applicant file and serve, by email to the Applicant and by ordinary post to the registered address of the Second Respondent, an affidavit of service of the documents described at paragraph 2 above of these orders.
4.On or before 4.00pm on 26 April 2022 the Second Respondent file and serve a notice of address for service and any response or evidence sought to be relied on.
5.In the event such documents are not filed the matter proceed as undefended against the Respondents.
AND THE COURT NOTES THAT:
A.The matter proceeded against the Respondent, [Ms Connor], on an undefended basis on 23 September 2021 and 7 October 2021.
B.       Judgment remains reserved.
…

From the affidavit of the Husband's solicitor filed 6 April 2022 I am satisfied that the orders of 29 March 2022 were complied with and that the order joining the company as the Second Respondent to the proceedings and ordering the second respondent to file and serve a notice of address for service and any response or evidence sought to be relied upon was served upon the Wife and the company. No documents or response was filed or served since those documents were served upon the wife again, and on the company.
On 26 May 2022 (H14 26 May 2022) the Husband's solicitors wrote to the court advising that neither the company or the Wife filed any document or served any document upon the Husband's solicitors since service of the order joining the company. I accept that evidence.
Because of those recent events and the events described earlier in these proceedings and the uncontested evidence of the Husband that the C Street, Suburb D unit is where the Wife lives, I am satisfied that the company had constructive notice of these proceedings from the start and in any event I am satisfied that the Wife and company has had formal notice of the proceedings and the orders sought by the Husband and the factual allegations made by the Husband in these proceedings.
I am satisfied that the Wife and the Second Respondent, the company, have adequate notice of the proceedings, both formally and constructively. I am satisfied that it is appropriate to proceed undefended and proceed on the basis that the Husband's evidence is unchallenged.
Documents relied upon
The documents relied upon by the Husband are as follows:
·Initiating Application filed 21 July 2020;
·Financial Statement filed 21 July 2020;
·Affidavits of Service filed 6 October 2020 (x2);
·Affidavit of Paula Leslie filed 21 April 2021;
·Amended Initiating Application filed 21 May 2021;
·Affidavit of Mr Gironda filed 21 May 2021;
·Subpoena to ANZ Bank filed 15 July 2021;
·Affidavit of Mr L filed 26 July 2021;
·Further Amended Initiating Application filed 11 August 2021;
·Affidavit of Mr J filed 18 August 2021;
·Case Outline filed 23 September 2021;
·Affidavit of Mr J filed 23 September 2021.
Husband's evidence and case
The Husband's case is that although their marriage relationship of short duration (2 and a quarter years from cohabitation in 2016 to separation in January 2019) he did make an indirect financial contribution, he is unemployed and impecunious and that the Wife, relative to him has significant assets and an unknown, but greater than his, income. Further that he has had to expend money on unnecessary legal fees, borrowed from relatives, sold his motor car, his only asset to pay legal fees, but the Wife runs a business with a number of retail outlets. It is likely that the Wife's business will have suffered a very significant downturn during the COVID-19 pandemic.
The Husband’s solicitors were able to get some idea of the Wife's liabilities by subpoena to the ANZ bank which holds the mortgage over the C Street, Suburb D unit. The Wife has a number of bank accounts relating to her business which fluctuate. The Husband observed and worked in 3 of the retail outlets of the business or businesses of the Wife. It is not known whether the Wife conducts or conducted these three retail outlets or shops as the one business or separate businesses. The Wife has not disclosed the turnover, expenses or profit of those business or businesses or what salary or benefits she receives from it or them. The Husband's case outline for final hearing on 23 September 2021, which is based upon and summarises and reflects the evidence in the Husband's affidavit filed 21 May 2021 and his financial statement filed at the same time (and which has been served on the Wife and the company) set out an approximate asset pool. I accept that evidence and those submissions.
The outline of case filed by the Husband sets out the contributions and section 75(2) factors (of the Family Law Act 1975 (Cth) (‘the Act’)) as follows:
…
CONTRIBUTIONS
Initial contributions
7.        As at cohabitation, the Husband had no assets or liabilities of significance.
8.        The Wife owned the assets outlined above.
9.The Wife also owned an apartment in [M Street, Suburb N] which was sold for $1.5million in July 2018 (as deposed to at paragraph 31 of the Husband’s Affidavit filed 21 May 2021).
Contributions during the relationship
10.During the relationship, the Husband worked long hours in the Wife’s [stores] and was underpaid during his employment.
11.The Husband completed extensive renovations to the Wife’s [stores] for no additional pay.
12.      The Husband paid the Wife the sum of $350 per week during cohabitation.
13.The Husband contributed by way of homemaker and caring for the Wife when she was unwell.
14.The Husband abandoned his application for sponsorship with his employer in Victoria when the Wife suggested that the parties marry and apply for a spouse visa. The Husband also gave up his rights to live and work In [Country O] when he married the Wife and did not return to [Country O] to renew his visa.
RELEVANT 75(2) FACTORS AND FURTURE NEEDS
Section 75(2)(a) – the age and state of health of each of the parties
15.The Husband is 49 years of age and the Wife is 60 years of age.
16.The Husband suffers from anxiety and depression.
17.The Wife also has a history of mental health issues but those details are unknown.
…
I accept those submissions.
I was told and accept that subsequent to that outline of case the Husband sold his motor vehicle for €300 and applied the same to legal fees. I will include the Husband's debt to his brother-in-law Mr P of $13,700. Part of that was applied to legal fees and to that extent I will include as an asset in the Husband’s hand being paid legal fees, sourced from his borrowing from Mr P, in the sum of $3,000. I accept that evidence.
The Husband's case was that the Wife should be regarded as making the overwhelmingly the greater financial contribution but that nonetheless the husband's contribution, to the pool of the parties assets approximately as set out in the outline of case, should be regarded as being in the range of 5 to 10% with a 5 to 10% adjustment to section 75(2) factors and that the outcome of the case should be to he receives in the order of 10 to 15% of the parties’ assets by way of property settlement.
The minutes of orders sought by the Husband sought a payment of $100,000 on the basis of $50,000 as property settlement and $50,000 as lump sum maintenance. In discussions with counsel it was conceded that if there was a property settlement in the order of $50,000 to $75,000 that the Husband would in the immediate future be able to support himself with that modest sum of money and hence if I was to make a property settlement order of that dimension an order for lump sum maintenance was not pressed.
I do not know sufficient of the Wife's assets and income to be able to assess her capacity to pay spousal maintenance. I do not know about that because of her nondisclosure of her assets and liabilities.
The applicable law
The law to be applied is as follows:
Section 79Alteration of property interests
(1)In property settlement proceedings, the court may make such order as it considers appropriate:
(a)in the case of proceedings with respect to the property of the parties to the marriage or either of them--altering the interests of the parties to the marriage in the property; or
(b)in the case of proceedings with respect to the vested bankruptcy property in relation to a bankrupt party to the marriage--altering the interests of the bankruptcy trustee in the vested bankruptcy property;
including:
(c)an order for a settlement of property in substitution for any interest in the property; and
(d)an order requiring:
(i)        either or both of the parties to the marriage; or
(ii)       the relevant bankruptcy trustee (if any);
to make, for the benefit of either or both of the parties to the marriage or a child of the marriage, such settlement or transfer of property as the court determines.
(1A)An order made under subsection (1) in property settlement proceedings may, after the death of a party to the marriage, be enforced on behalf of, or against, as the case may be, the estate of the deceased party.
(1B)The court may adjourn property settlement proceedings, except where the parties to the marriage are:
(a)parties to concurrent, pending or completed divorce or validity of marriage proceedings; or
(ba)parties to a marriage who have divorced under the law of an overseas country, where that divorce is recognised as valid in Australia under section 104; or
(bb)parties to a marriage that has been annulled under the law of an overseas country, where that annulment is recognised as valid in Australia under section 104; or
(c)parties to a marriage who have been granted a legal separation under the law of an overseas country, where that legal separation is recognised as valid in Australia under section 104;
on such terms and conditions as it considers appropriate, for such period as it considers necessary to enable the parties to the marriage to consider the likely effects (if any) of an order under this section on the marriage or the children of the marriage, but nothing in this subsection shall be taken to limit any other power of the court to adjourn such proceedings.
(1C)Where the period for which a court has adjourned property settlement proceedings as provided by subsection (1B) has not expired and:
(a)divorce or validity of marriage proceedings are instituted by one or both of the parties to the marriage; or
(ba)the parties to the marriage have divorced under the law of an overseas country and the divorce is recognised as valid in Australia under section 104; or
(bb)the marriage is annulled under the law of an overseas country and the annulment is recognised as valid in Australia under section 104; or
(c)the parties to the marriage are granted a legal separation under the law of an overseas country and the legal separation is recognised as valid in Australia under section 104;
a party to the first-mentioned proceedings may apply to the court for the hearing of those proceedings to be continued.
(2)The court shall not make an order under this section unless it is satisfied that, in all the circumstances, it is just and equitable to make the order.
(4)In considering what order (if any) should be made under this section in property settlement proceedings, the court shall take into account:
(a)the financial contribution made directly or indirectly by or on behalf of a party to the marriage or a child of the marriage to the acquisition, conservation or improvement of any of the property of the parties to the marriage or either of them, or otherwise in relation to any of that last-mentioned property, whether or not that last-mentioned property has, since the making of the contribution, ceased to be the property of the parties to the marriage or either of them; and
(b)the contribution (other than a financial contribution) made directly or indirectly by or on behalf of a party to the marriage or a child of the marriage to the acquisition, conservation or improvement of any of the property of the parties to the marriage or either of them, or otherwise in relation to any of that last-mentioned property, whether or not that last-mentioned property has, since the making of the contribution, ceased to be the property of the parties to the marriage or either of them; and
(c)the contribution made by a party to the marriage to the welfare of the family constituted by the parties to the marriage and any children of the marriage, including any contribution made in the capacity of homemaker or parent; and
(d)the effect of any proposed order upon the earning capacity of either party to the marriage; and
(e)the matters referred to in subsection 75(2) so far as they are relevant; and
(f)any other order made under this Act affecting a party to the marriage or a child of the marriage; and
(g)any child support under the Child Support (Assessment) Act 1989 that a party to the marriage has provided, is to provide, or might be liable to provide in the future, for a child of the marriage.
……
(5)Without limiting the power of any court to grant an adjournment in proceedings under this Act, where, in property settlement proceedings, a court is of the opinion:
(a)that there is likely to be a significant change in the financial circumstances of the parties to the marriage or either of them and that, having regard to the time when that change is likely to take place, it is reasonable to adjourn the proceedings; and
(b)       that an order that the court could make with respect to:
(i)        the property of the parties to the marriage or either of them; or
(ii)the vested bankruptcy property in relation to a bankrupt party to the marriage;
if that significant change in financial circumstances occurs is more likely to do justice as between the parties to the marriage than an order that the court could make immediately with respect to:
(iii)      the property of the parties to the marriage or either of them; or
(iv)the vested bankruptcy property in relation to a bankrupt party to the marriage;
the court may, if so requested by either party to the marriage or the relevant bankruptcy trustee (if any), adjourn the proceedings until such time, before the expiration of a period specified by the court, as that party to the marriage or the relevant bankruptcy trustee, as the case may be, applies for the proceedings to be determined, but nothing in this subsection requires the court to adjourn any proceedings in any particular circumstances.
(6)Where a court proposes to adjourn proceedings as provided by subsection (5), the court may, before so adjourning the proceedings, make such interim order or orders or such other order or orders (if any) as it considers appropriate with respect to:
(a)any of the property of the parties to the marriage or of either of them; or
(b)any of the vested bankruptcy property in relation to a bankrupt party to the marriage.
(7)The court may, in forming an opinion for the purposes of subsection (5) as to whether there is likely to be a significant change in the financial circumstances of either or both of the parties to the marriage, have regard to any change in the financial circumstances of a party to the marriage that may occur by reason that the party to the marriage:
(a)is a contributor to a superannuation fund or scheme, or participates in any scheme or arrangement that is in the nature of a superannuation scheme; or
(b)may become entitled to property as the result of the exercise in his or her favour, by the trustee of a discretionary trust, of a power to distribute trust property;
but nothing in this subsection shall be taken to limit the circumstances in which the court may form the opinion that there is likely to be a significant change in the financial circumstances of a party to the marriage.
(8)Where, before property settlement proceedings are completed, a party to the marriage dies:
(a)the proceedings may be continued by or against, as the case may be, the legal personal representative of the deceased party and the applicable Rules of Court may make provision in relation to the substitution of the legal personal representative as a party to the proceedings;
(b)       if the court is of the opinion:
(i)that it would have made an order with respect to property if the deceased party had not died; and
(ii)that it is still appropriate to make an order with respect to property;
the court may make such order as it considers appropriate with respect to:
(iii)any of the property of the parties to the marriage or either of them; or
(iv)any of the vested bankruptcy property in relation to a bankrupt party to the marriage; and
(c)an order made by the court pursuant to paragraph (b) may be enforced on behalf of, or against, as the case may be, the estate of the deceased party.
(9)The Federal Circuit and Family Court of Australia (Division 1), or a Family Court of a State, shall not make an order under this section in property settlement proceedings (other than an order until further order or an order made with the consent of all the parties to the proceedings) unless:
(a)the parties to the proceedings have attended a conference in relation to the matter to which the proceedings relate:
(i)in the case of the Federal Circuit and Family Court of Australia (Division 1)--with the Chief Executive Officer, or a Senior Registrar or Registrar of the Court; or
(ii)in the case of the Family Court of that State--with a Senior Registrar or Registrar of that Family Court; or
(b)the court is satisfied that, having regard to the need to make an order urgently, or to any other special circumstance, it is appropriate to make the order notwithstanding that the parties to the proceedings have not attended a conference as mentioned in paragraph (a); or
(c)the court is satisfied that it is not practicable to require the parties to the proceedings to attend a conference as mentioned in paragraph (a).
(10)The following are entitled to become a party to proceedings in which an application is made for an order under this section by a party to a marriage (the subject marriage ):
(a)a creditor of a party to the proceedings if the creditor may not be able to recover his or her debt if the order were made;
(aa)     a person:
(i)who is a party to a de facto relationship with a party to the subject marriage; and
(ii)who could apply, or has an application pending, for an order under section 90SM, or a declaration under section 90SL, in relation to the de facto relationship;
(ab)a person who is a party to a Part VIIIAB financial agreement (that is binding on the person) with a party to the subject marriage;
(b)any other person whose interests would be affected by the making of the order.
(10A)Subsection (10) does not apply to a creditor of a party to the proceedings:
(a)if the party is a bankrupt--to the extent to which the debt is a provable debt (within the meaning of the Bankruptcy Act 1966 ); or
(b)if the party is a debtor subject to a personal insolvency agreement--to the extent to which the debt is covered by the personal insolvency agreement.
(10B)If a person becomes a party to proceedings under this section because of paragraph (10)(aa), the person may, in the proceedings, apply for:
(a) an order under section 90SM; or
(b)       a declaration under section 90SL;
in relation to the de facto relationship described in that paragraph.
(11)If:
(a)an application is made for an order under this section in proceedings between the parties to a marriage with respect to the property of the parties to the marriage or either of them; and
(b)       either of the following subparagraphs apply to a party to the marriage:
(i)        when the application was made, the party was a bankrupt;
(ii)after the application was made but before it is finally determined, the party became a bankrupt; and
(c)the bankruptcy trustee applies to the court to be joined as a party to the proceedings; and
(d)the court is satisfied that the interests of the bankrupt's creditors may be affected by the making of an order under this section in the proceedings;
the court must join the bankruptcy trustee as a party to the proceedings.
(12)If a bankruptcy trustee is a party to property settlement proceedings, then, except with the leave of the court, the bankrupt party to the marriage is not entitled to make a submission to the court in connection with any vested bankruptcy property in relation to the bankrupt party.
(13)The court must not grant leave under subsection (12) unless the court is satisfied that there are exceptional circumstances.
(14)If:
(a)an application is made for an order under this section in proceedings between the parties to a marriage with respect to the property of the parties to the marriage or either of them; and
(b)either of the following subparagraphs apply to a party to the marriage (the debtor party ):
(i)when the application was made, the party was a debtor subject to a personal insolvency agreement; or
(ii)after the application was made but before it is finally determined, the party becomes a debtor subject to a personal insolvency agreement; and
(c)the trustee of the agreement applies to the court to be joined as a party to the proceedings; and
(d)the court is satisfied that the interests of the debtor party's creditors may be affected by the making of an order under this section in the proceedings;
the court must join the trustee of the agreement as a party to the proceedings.
(15)If the trustee of a personal insolvency agreement is a party to property settlement proceedings, then, except with the leave of the court, the party to the marriage who is the debtor subject to the agreement is not entitled to make a submission to the court in connection with any property subject to the agreement.
(16)The court must not grant leave under subsection (15) unless the court is satisfied that there are exceptional circumstances.
(17)For the purposes of subsections (11) and (14), an application for an order under this section is taken to be finally determined when:
(a)       the application is withdrawn or dismissed; or
(b)an order (other than an interim order) is made as a result of the application.
87.By section 79(4)(e) the shopping list of largely prospective factors of section 75(2), that are the same factors to be considered when considering spousal maintenance, are to be had regard to. Section 75(2) provides as follows:
Section 75Matters to be taken into consideration in relation to spousal maintenance
(1)In exercising jurisdiction under section 74, the court shall take into account only the matters referred to in subsection (2).
(2)The matters to be so taken into account are:
(a)the age and state of health of each of the parties; and
(b)the income, property and financial resources of each of the parties and the physical and mental capacity of each of them for appropriate gainful employment; and
(c)whether either party has the care or control of a child of the marriage who has not attained the age of 18 years; and
(d)commitments of each of the parties that are necessary to enable the party to support:
(i)himself or herself; and
(ii)child or another person that the party has a duty to maintain; and
(e)the responsibilities of either party to support any other person; and
(f)subject to subsection (3), the eligibility of either party for a pension, allowance or benefit under:
(i)any law of the Commonwealth, of a State or Territory or of another country; or
(ii)any superannuation fund or scheme, whether the fund or scheme was established, or operates, within or outside Australia;
and the rate of any such pension, allowance or benefit being paid to either party; and
(g)where the parties have separated or divorced, a standard of living that in all the circumstances is reasonable; and
(h)the extent to which the payment of maintenance to the party whose maintenance is under consideration would increase the earning capacity of that party by enabling that party to undertake a course of education or training or to establish himself or herself in a business or otherwise to obtain an adequate income; and
(ha)the effect of any proposed order on the ability of a creditor of a party to recover the creditor's debt, so far as that effect is relevant; and
(j)the extent to which the party whose maintenance is under consideration has contributed to the income, earning capacity, property and financial resources of the other party; and
(k)the duration of the marriage and the extent to which it has affected the earning capacity of the party whose maintenance is under consideration; and
(l)the need to protect a party who wishes to continue that party's role as a parent; and
(m)if either party is cohabiting with another person--the financial circumstances relating to the cohabitation; and
(n)the terms of any order made or proposed to be made under section 79 in relation to:
(i)        the property of the parties; or
(ii)       vested bankruptcy property in relation to a bankrupt party; and
(naa)the terms of any order or declaration made, or proposed to be made, under Part VIIIAB in relation to:
(i)        a party to the marriage; or
(ii)a person who is a party to a de facto relationship with a party to the marriage; or
(iii)the property of a person covered by subparagraph (i) and of a person covered by subparagraph (ii), or of either of them; or
(iv)vested bankruptcy property in relation to a person covered by subparagraph (i) or (ii); and
(na)any child support under the Child Support (Assessment) Act 1989 that a party to the marriage has provided, is to provide, or might be liable to provide in the future, for a child of the marriage; and
(o)any fact or circumstance which, in the opinion of the court, the justice of the case requires to be taken into account; and
(p)the terms of any financial agreement that is binding on the parties to the marriage; and
(q)the terms of any Part VIIIAB financial agreement that is binding on a party to the marriage.
(3)In exercising its jurisdiction under section 74, a court shall disregard any entitlement of the party whose maintenance is under consideration to an income tested pension, allowance or benefit.
(4)In this section:
"party" means a party to the marriage concerned.
88.The Court has wide powers as set out as section 80 of the Act:
Section 80 General Powers of Court
(1)The court, in exercising its powers under this Part, may do any or all of the following:
(a)order payment of a lump sum, whether in one amount or by instalments;
(b)       order payment of a weekly, monthly, yearly or other periodic sum;
(ba)order that a specified transfer or settlement of property be made by way of maintenance for a party to a marriage;
(c)order that payment of any sum ordered to be paid be wholly or partly secured in such manner as the court directs;
(d)order that any necessary deed or instrument be executed and that such documents of title be produced or such other things be done as are necessary to enable an order to be carried out effectively or to provide security for the due performance of an order;
(e)       appoint or remove trustees;
(f)order that payments be made direct to a party to the marriage, to a trustee to be appointed or into court or to a public authority for the benefit of a party to the marriage;
(h)make a permanent order, an order pending the disposal of proceedings or an order for a fixed term or for a life or during joint lives or until further order;
(i)        impose terms and conditions;
(j)        make an order by consent;
(k)make any other order (whether or not of the same nature as those mentioned in the preceding paragraphs of this section), which it thinks it is necessary to make to do justice; and
(l)subject to this Act and the applicable Rules of Court, make an order under this Part at any time before or after the making of a decree under another Part.
(2)The making of an order of a kind referred to in paragraph (1)(ba), or of any other order under this Part, in relation to the maintenance of a party to a marriage does not prevent a court from making a subsequent order in relation to the maintenance of the party.
(3)The applicable Rules of Court may make provision with respect to the making of orders under this Part in relation to the maintenance of parties to marriages (whether as to their form or otherwise) for the purpose of facilitating their enforcement and the collection of maintenance payable under them.
(4)If a bankruptcy trustee is a party to a proceeding before the court, the court may make an order under paragraph (1)(d) directed to the bankrupt.
(5)If the trustee of a personal insolvency agreement is a party to a proceeding before the court, the court may make an order under paragraph (1)(d) directed to the debtor subject to the agreement.
(6)      Subsections (4) and (5) do not limit paragraph (1)(d).
Just and equitable and the preferred approach

In Keskin & Keskin and Anor [2019] FamCAFC 236; (2019) FLC 93-932 (‘Keskin’) the Full Court, Strickland, Kent & Austin JJ, at [44] approved what was the age old and pre Stanford “preferred approach” as to the how the nuts and bolts of section 79(4) of the Act, and hence section 90SM of the Act, fitted together:
[20]In Hickey and Hickey and Attorney-General for the Commonwealth of Australia (Intervener) [2003] FamCA 395; (2003) FLC 93-143 at [39] the Full Court, in setting out what the case law revealed as the “preferred approach” to the determination of an application under s 79 of the Act, referred to four inter-related steps, including that “the Court should identify and assess the contributions of the parties within the meaning of ss. 79(4)(a), (b) and (c) and determine the contribution based entitlements of the parties expressed as a percentage of the net value of the property of the parties”. The Full Court did not purport to elevate the preferred approach as being mandatory, as was observed by a later Full Court in Bevan & Bevan [2013] FamCAFC 116; (2013) FLC 93-545 at [61]- [63], [72]. However, adoption of that preferred approach is a means by which many of the mandatory factors in s 75(2) of the Act, in particular paragraph (b) – the income, property and financial resources of each of the parties; paragraph (ha) – ability of a creditor to recover debt; paragraph (n) – the terms of any proposed order under s 79 of the Act; can be considered, as these must be considered, in determining any adjustment pursuant to s 75(2) of the Act. Conversely, if the preferred approach is not adopted there must be a means discernible from the reasons to identify that these relevant mandatory s 75(2) factors have been considered, and how they have been brought into account, in the making of any s 75(2) adjustment...
That preferred approach set out at [39] of Hickey and Hickey and the Attorney-General [2003] FamCA 395; (2003) FLC 93-143 (‘Hickey’) is as follows (citations omitted):
[39]The case law reveals that there is a preferred approach to the determination of an application pursuant to the provisions of section 79. That approach involves four interrelated steps. Firstly, the court should make findings as to the identity and value of the property, liabilities and financial resources of the parties at the date of hearing. Secondly the court should identify and assess the contributions of the parties within the meaning of section 79(4)(a), (b) & (c) and determine the contribution based entitlements of the parties expressed as a percentage of the net value of the property of the parties. Thirdly the court should identify and assess the relevant matters referred to in section 79(4) (d), (e), (f) & (g) (“the other factors”) including, because of section 79(4), the matters referred to in section 75(2) so far as they are relevant and determine the adjustment study (if any) that should be made to the contribution based entitlements of the parties established at step two. Fourthly, the Court should consider the effect of those findings and determination and resolve what order is just and equitable in all the circumstances of the case.
Lest it be said there is a conflict between the High Court’s disavowal of “entitlement” to a section 79 order by mere separation and/or section 79(4) contribution on the one hand, and the use of the word “entitlements” in the Hickey passage cited above I regard the use of that word in the above context as synonymous with “assessment.” I will have regard to what I find to be the contribution based assessment rather than entitlement.
The division or adjustment of property acquired over the parties’ lifetime is a serious, stressful and emotionally intense legal matter. Many family lawyers find that failing to have regard to the preferred approach in negotiations, mediation or litigation (including submissions) is likely to widen the areas of dispute and make resolution by agreement more difficult and often results in a party, or both, merely seeking what he or she simply wants or regards as fair from his or her point of view.
The preferred approach assists me in making a principled and orderly determination of the parties’ property dispute and counsel for the Husband helpfully addressed me about those matters.
During the short relationship and marriage the parties had the use of, and lived in, the C Street, Suburb D Unit. On the evidence the husband is impecunious and the wife is not. The Husband's commitment to the marriage relationship in Australia meant that he did not pursue his Visa or residency in Country O. Both parties invested significantly over three years in the relationship and marriage which has broken down. In those circumstances I find that it is just and equitable that I make a property order pursuant to section 79 of the Act.
Step one: identify the property pool.
Because the Wife lived in the C Street, Suburb D Unit during the relationship and marriage, because she is the sole shareholder of the registered proprietor and hence able to appoint and remove directors of the company as she sees fit, and because the Wife is one of two directors and because the company has been put on notice of the Husband's case and joined the proceedings as a party and has not filed any document or participated, I find that the Wife has, subject to the liabilities secured by mortgage over the title to the C Street, Suburb D Unit, complete control over the company and its asset. If the wife does not have complete control she is able, if she chooses, to change the directors of the company so that she does have complete control.
An alternative to the alter ego approach urged by counsel for the Husband would be to have regard to the value of the Wife's shareholding in the company. Where the Wife owns 100% of the shares in the company, and the Wife is recorded as owning those shares beneficially, then absent any evidence that the Wife could not realise the value of those shares, the value of the assets less the liabilities of the company is likely to be the value of the shares. This road of the value of the shares leads to the same conclusion as the alter ego approach.
An example of this approach is Ramsay v Ramsay (1997) FLC 92-742 (‘Ramsay’) where at 83,997 Warnick J observed as follows:
The principles
If the shareholding is a controlling one, the value appropriate for Family Court purposes will generally be fairly easily determined. In Mallet v Mallet (1984) FLC ¶91-507, at p 79,115; (1984) 156 C.L.R. 605, at pp 616 and 617, Gibbs C.J. said:
“... where, however, a company is merely a convenient means of holding the assets, and the person who owns the shareholding in question is able to put the company into liquidation at will, the real value of the shares will be likely to be the amount which the holder would receive if the company were voluntarily wound up. And since the purpose for which a valuation is made may affect the Court's attitude (Commissioner of Succession Duties (SA) v. Executor Trustee and Agency Co. of South Australia Limited (1947) 74 C.L.R. at pp. 373-374), there is much to be said for the view that Court will be more ready to value shares on a liquidation basis in a case such as the present than in a revenue or even in a compensation case.”
In such cases there is also usually no concern about the ability of the shareholder to realise the value ascribed to the shares.
In this case
In those circumstances I find that the company is the alter ego of the Wife and that it is appropriate, procedurally fair and just and equitable to include the asset of the company being the C Street, Suburb D Unit, and the liabilities secured over the title to that Unit, as part of the asset pool and that value, on the information available, is approximately the values of the shares of that company 100% beneficially owned by the Wife.
Because of the nondisclosure by the Wife I am unable to identify the property pool with any precision. Doing the best I can, consistent with Chang & Su and that line of authorities including the observations of Callinan J on the special leave application in Chang & Su, I find that there is an asset pool and that the mortgage debt should be taken into account in looking at the equity of the Wife and the company in that property and/or the value of the shares. The Husband's lawyers were able to identify by inspection of subpoenaed documents that the debt likely secured over the C Street, Suburb D Unit as approaching $700,000. I find that it is likely that part of that debt relates directly or indirectly to the wife's business or businesses and the three retail outlets conducted, or previously conducted by her.
I find that the Wife has not participated in the proceedings or made disclosure and the consequence of that is that I find the Wife's failure to make proper disclosure, that is put the proper evidence before me, would be unlikely to assist her case or reduce the quantum of the property settlement to the Husband.
Hence I accept and find that the asset pool, as best can be understood in the circumstances, is approximately as follows;
1.   Equity in the C Street, Suburb D Unit
a.   Single expert valuation     $1,100,000
b.   ANZ secured debt about   ( 700,000)
Apparent equity  $ 400,000
2.   Wife’s Motor Vehicle 1    $ 32,000  (Likely encumbered to its value)
3.   Wife’s other assets and liabilities   $ Not known
4.   Husband’s assets:
a.paid legal fees  $    3,000
b.debt to Mr P               (13,700)
Husband net assets   (10,700)
5.   Total all known assets                 about              $389,300
The Wife has a Motor Vehicle 1 but from the Husband's evidence I find that it is likely that that motorcar was purchased on finance or hire purchase rather than paid for in cash and is unlikely to have any equity in it. The Husband's net assets are effectively a liability to his brother-in-law of $13,700 and paid legal fees of $3000 with a de minimis must amount in a bank account leaving his net position of negative $10,700 approximately.
Hence I find that the net pool of assets for the purposes of section 79 are about $389,300, but plus or minus, to an unknown extent, the excess or deficiency of the business assets of the Wife or the company over the business debts and liabilities of the Wife or the company.
The day prior to the delivery of these reasons the Husband’s solicitor provided a letter, Notice of demand and Notice of default from the solicitors for the mortgagee, the ANZ, dated 7 July 2022. This is exhibit ‘H13’ and records the amount secured under the ANZ mortgage over the C Street, Suburb D Unit as $672,954. Hence it maybe that the ANZ debt is a little less than the approximately $700,000 I had found based on the submissions arising from subpoenaed documents. However selling costs would likely account for the difference and hence I will continue to regard the equity as about $400,000.
Step two: Contribution
It was conceded by the Husband's counsel in submissions that the Wife has made the overwhelming direct financial contribution to the property of the parties because of the assets that she brought into the relationship. She brought in the C Street, Suburb D Unit and her business or businesses. The Husband brought in no assets.
I accept the Husband's account of the work he did, sometimes over long hours, and for only little payment or compensation and the support that he provided to the Wife when she was ill. He became the Wife's "right-hand man" assisting her in the running and expansion and improvement of the business. I accept and find that from the commencement of cohabitation until separation the Wife worked as hard and diligently as the Husband did.
In those circumstances, and with a substantial degree of imprecision because of the nondisclosure by the Wife, I find that the Husband should be regarded as contributing in the order of 7.5% of the asset pool to the extent it is known or about $30,000.
Step three: Section 75(2) factors
The Husband is aged 49 and the Wife is aged 60. To the extent that the asset pool can be approximately identified, at the end of the contribution exercise or assessment at step two of the preferred approach, the Wife will have something in the order of 10 or 12 times the assets of the Husband. Notwithstanding that she brought all of those assets into the relationship I must take account of that asset disparity. The Husband is unemployed. The Wife has a business with an unknown income. In those circumstances I find that the Wife's financial circumstances are far superior to the Husband's. Were this to be a case where the Wife had made proper financial disclosure and the asset pool to be capable of being found to be actually about $389,000, then a section 75(2) adjustment in the order of 5% would be appropriate.
In this case the nondisclosure is profound and marks the whole proceedings. Nondisclosure is a matter that I must take into account pursuant to Chang and Su and the nondisclosure line of authorities. The Act authorises such an adjustment by section 75(2)(o).
In those circumstances including the nondisclosure I find that the section 75(2) factors adjustment should be a total of 10% or about $39,000.
I also take into account that I have been asked to and for the reasons that follow this part of the judgment will make an order for costs against the Wife because of the expense caused by her refusal to comply with Court orders or her duty of full and frank financial disclosure.
Step four: Conclusion, calculations and just and equitable?
In the unhappy circumstances of the Wife's nondisclosure I find that it is just and equitable upon application of sections 79(2), 79(4) & 75(2), to find that the Husband receive a property settlement in the order of 17.5% of the known pool.
17.5% of $389,000 is about $68,000 but the Husband carries net debt of $10,700 included in that notional pool of assets. Hence to give effect to a property settlement in the order of 17.5% the payment to the Husband should be as follows:
1.17.5% of $389,000: $68,000 (rounded)
2.Plus debt included $10,700
3.Payment to Husband $78,700
The effect is that the net position of the Husband would be about $68,000 or 17.5% of the known asset pool. The Husband should receive a property settlement of $78,700 on the basis that he is responsible for his own debt.
The form of orders sought by the Husband are largely appropriate and with minor fine tuning will be followed, including the default provisions.
APPLICATION FOR COSTS
Whether or not to order costs it is controlled by section 117 of the Act which is as follows (notes omitted):
Section 117 Costs
(1)Subject to subsection (2), subsections 45A(6) and 70NFB(1) and sections 117AA and 117AC, each party to proceedings under this Act shall bear his or her own costs.
(2)If, in proceedings under this Act, the court is of opinion that there are circumstances that justify it in doing so, the court may, subject to subsections (2A), (4), (4A), (5) and (6) and the applicable Rules of Court, make such order as to costs and security for costs, whether by way of interlocutory order or otherwise, as the court considers just.
(2A)In considering what order (if any) should be made under subsection (2), the court shall have regard to:
(a) the financial circumstances of each of the parties to the proceedings;
(b)whether any party to the proceedings is in receipt of assistance by way of legal aid and, if so, the terms of the grant of that assistance to that party;
(c)the conduct of the parties to the proceedings in relation to the proceedings including, without limiting the generality of the foregoing, the conduct of the parties in relation to pleadings, particulars, discovery, inspection, directions to answer questions, admissions of facts, production of documents and similar matters;
(d)whether the proceedings were necessitated by the failure of a party to the proceedings to comply with previous orders of the court;
(e)whether any party to the proceedings has been wholly unsuccessful in the proceedings;
(f)whether either party to the proceedings has made an offer in writing to the other party to the proceedings to settle the proceedings and the terms of any such offer; and
(g) such other matters as the court considers relevant.
…
By exhibit H12 I find that the Husband’s costs on scale are $19,233, but this would not include the cost of the additional January 2022 submissions. Those costs are reasonable. They include the scale amounts of $2,356, $231 and $1,964 (total $4,551) being for initiating an application and attending the Case Assessment Conference. Had the Wife complied with the rules or Court orders the expenditure of those costs would have been necessary. The further expense is largely due to the failure of the Wife to comply with the rule and with orders.
Hence taking into account the provisions of section 117 of the Act, and the unnecessary expense the Wife’s conduct of the proceedings has put the Husband to, but separately to the consideration of the Chang & Su principles in the section 79 determination, the Wife should pay the Husband’s costs in the sum of $14,592.

I certify that the preceding one hundred and sixteen (116) numbered paragraphs are a true copy of the Reasons for Judgment of Judge O'Shannessy.
Associate:
Dated: 15 July 2022

File number:	MLC 7888 of 2020
Judgment of:	JUDGE O'SHANNESSY
Date of judgment:	15 July 2022
Catchwords:	FAMILY LAW – property and financial matter – proceeded undefended – husband unemployed – respondent wife did not participate – second respondent company found to be wife’s alter ego and added to the proceedings – short relationship of the parties – just and equitable to make an order – nondisclosure – 7.5 per cent contribution assessment – disparity of assets and income – 10 per cent section 75(2) adjustment.
Legislation:	Family Law Act 1975 (Cth) ss 75, 79, 80, 117 Federal Circuit Court Rules 2001 (Cth) rr 24.01, 24.02, 24.03, 24.04 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) rr 1.04, 1.33, 3.01, 3.05, 6.01, 6.06
Cases cited:	An & Zhu (2006) FLC ¶93-257 Aon Risk Services Australia Ltd v ANU (2009) 239 CLR 175 Chang & Su (2002) FLC 93-117 Chang v Su [2002] HCA Trans 549 Hickey and Hickey and the Attorney-General [2003] FamCA 395; (2003) FLC 93-143 Keskin & Keskin and Anor [2019] FamCAFC 236; (2019) FLC 93-932 Kingston & Field (No.2) [2020] FamCAFC 235 Ramsay v Ramsay (1997) FLC 92-742 Singam & Moffrey (2015) FLC 93-641 Queensland v JL Holdings Pty Ltd (1997) 189 CLR 146 Zane & Allan (2008) FLC 93-378
Division:	Division 2 Family Law
Number of paragraphs:	116
Date of last submissions:	6 April 2022
Date of hearing:	6 October 2021
Place:	Melbourne
Counsel for the Applicant:	Ms A Finemore
Solicitor for the Applicant:	Leslie Family Law
Solicitor for the Respondents:	No Appearance

MLC 7888 of 2020
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN:	MR GIRONDA Applicant
AND:	MS CONNOR Respondent
ORDER MADE BY:	JUDGE O'SHANNESSY
DATE OF ORDER:	15 JULY 2022