GLADWIN and GLADWIN

[2017] FCWA 131

JURISDICTION : FAMILY COURT OF WESTERN AUSTRALIA

ACT: FAMILY LAW ACT 1975

LOCATION: PERTH

CITATION: GLADWIN and GLADWIN [2017] FCWA 131

CORAM: MONCRIEFF J

HEARD: 22 SEPTEMBER 2017

DELIVERED : 10 OCTOBER 2017

FILE NO/S: PTW 5869 of 2016

BETWEEN: MS GLADWIN

Applicant

AND

MR GLADWIN
Respondent

Catchwords:

PROPERTY SETTLEMENT – Undefended application – turns on own facts

Legislation:

Family Law Act 1975 (Cth)

Category: Not Reportable

Representation:

Counsel:

Applicant: Ms A Thomas

Respondent: No appearance

Solicitors:

Applicant: HFM Legal

Respondent: Self Represented Litigant

Case(s) referred to in judgment(s):

Stanford v Stanford (2012) 247 CLR 108

WORDS IN SQUARE BRACKETS REPLACE WORDS USED IN THE ORIGINAL JUDGMENT - PARTIES’ NAMES AND IDENTIFYING DETAILS HAVE BEEN CHANGED

1[Ms Gladwin] (“the wife”) and [Mr Gladwin] (“the husband”) commenced a relationship in 2000, commenced to live together as a de facto couple in December 2000, were married [in] 2010 and separated on a final basis in October 2014.

2There are no children of their marriage.

3I refer to the parties as husband and wife in these proceedings, not wishing in any way to be disrespectful to them, but rather to avoid the confusion that may arise by referring to them throughout as applicant and respondent.

4Since the parties’ separation they have been unable to resolve financial matters between them.

5On 22 September 2016, the wife filed an application seeking orders by way of variation of the parties’ property interests such as to effect a distribution of assets between the parties 75 per cent to the wife and 25 per cent to the husband, inclusive of their respective superannuation interests.

6The husband did not respond to the application nor comply with orders requiring him to do so.

7On 10 March 2017, Magistrate Kaeser made orders in the following terms: (Unless otherwise specified, all errors and emphasis in extracts are as in original).

1The Applicant, [MS GLADWIN], have leave to proceed on an undefended basis.

2The provisions of paragraph 6 of the orders made 20 February 2017, be and are hereby discharged.

3By no later than close of Registry 21 days prior to the date fixed for the trial, the Applicant file and serve:

(a)an affidavit setting out the Applicant’s evidence;

(b)an affidavit of each witness;

(c)a list of names of any proposed witness who has refused to provide an affidavit;

(d)an up to date Form 13 Financial Statement; and

(e)a Minute of Proposed Orders Sought setting out with particularity the orders sought at trial.

4Service of those documents upon the Respondent,

[MR GLADWIN]

, occur by substituted service by way of email.

5The said proceedings otherwise be adjourned to the 10 July 2017 at 10:00am with an estimated hearing time of 2 hours and be transferred to the Family Court of Western Australia.

8In compliance with those orders the wife filed a trial affidavit, updated statement of financial circumstances and minute of final orders sought on 20 June 2017 and caused the same to be served in accordance with Magistrate Kaeser’s order.

9Proof of service was filed on 5 July 2017. I am satisfied that the documents were served upon the husband on 20 June 2017 in accordance with his Honour’s order.

10The matter came on before me as an undefended trial on 22 September 2017.

11I was satisfied that the trustee of the relevant superannuation fund had been afforded procedural fairness as required under Pt VIIIB of the Family Law Act 1975 (Cth) (“the Act”). Further, I was satisfied having regard to the evidence before me that it was just and equitable to make an order and further that the orders sought by the wife were just and equitably made. I accordingly ordered in the terms of the minute of final orders sought as served upon the husband pursuant to Magistrate Kaeser’s order.

12The orders were as follows:

1Orders are hereby pronounced in terms of the Minute of Final Orders Sought by Applicant As at 19 June 2017 filed on

20 June 2017, a sealed copy of which is attached. (set out below)

MINUTE OF FINAL ORDERS SOUGHT BY APPLICANT
As at 19 June 2017

UPON the Form 1 Application filed by the Applicant Wife on 22 September 2016;

and with the intention that the Orders made herein shall as far as possible finally determine the financial relationship of the parties and avoid further proceedings between them as contemplated by section 81 of the Family Law Act 1975 both as to the alteration of property interests and spousal maintenance pursuant to Part VII of the Act, the Applicant seeks the following final orders,

[Property A]:

1As at the date of these Orders all of the Husband's right, title and interest in [Property A] hereby vests in the Wife and the Husband shall sign such documents and do such acts as required to complete this transfer.

2Contemporaneously with the transfer at paragraph 1 above, and by the date no later than 6 months from the date of this Order, the Wife shall cause the discharge of the mortgage [XXXXX XX] to St George Bank Ltd currently registered against the Property.

3Within 21 days of receipt by the Husband of a written request from the Wife or her agent, the Husband shall sign and return to the wife such documents, and do all other acts requested as required to effect the Orders above for the:

(a)transfer of the title to [Property A] into the sole name of the Wife, and

(b)discharge of the mortgage currently registered against [Property A].

4As from the date of these Orders the Wife shall be solely liable for and indemnify the Husband with respect to any and all future liabilities and costs connected to [Property A] including but not limited to the utilities, rates, maintenance, insurance and payment of the mortgage.

5As from the date of these Orders, the Wife have the right to the sole use and occupation of [Property A] to the exclusion of the Husband.

6 In the event that the Wife is unable or unwilling to

re-finance [Property A] within 6 months of the date of this Order, then the Property shall be placed on the market for sale, and the following orders apply:

(a)The Wife be appointed the sole trustee for the sale of [Property A];

(b)the Husband and Wife shall do all acts and sign documents required to bring about the prompt sale of the Property;

(c)both parties have liberty to apply to this Court in relation to the execution of the marketing, sale and settlement of the Property sale;

(d)upon the sale, the net proceeds from the sale of the Property be dispersed as follows:

(i)to discharge the mortgage registered against the Property to the St George Bank,

(ii)in payment of the usual selling and marketing fees and commissions,

(iii)in payment of the usual settlement fees,

(iv)the balance remaining, if any, be paid to the Wife.

Release of funds held by [Conveyancer A] on account of [the parties] from the sale of [Property B]

6The whole of the funds retained in the trust account of [Conveyancer A] (estimated as $116,633.00) be paid to the Wife.

7Within 21 days of receipt by the Husband of a written request from the Wife or her agent, the Husband shall sign and return to the wife such documents, and do all other acts requested as required to effect the Orders above for the payment of the funds held by [Conveyancer A] to the Wife.

Other Assets

8As at the date of these Orders all of the Husband's right, title and interest in the following shall vest in the Wife absolutely and where necessary the Husband shall do all acts and things and sign all documents necessary to effect a transfer of the same to the Wife, within twenty eight (28) days of the date of these Orders

(a)any funds held by the Wife in any bank, building society, credit union or other financial institution;

(b)all personal items, furniture, household items and tools in the possession of the Wife;

(c)any motor vehicle registered in the name of the Wife;

(d)the camper trailer situate at [Property A];

(e)any interest in any shares held by or on behalf of the Wife; and

(f)the Wife's superannuation entitlements.

9As at the date of these Orders all of the Wife's right, title and interest in the following shall vest in the Husband absolutely and where necessary the Wife shall do all acts and things and sign all documents necessary to effect a transfer of the same to the Husband within twenty eight (28) days of the date of the receipt of these Orders:

(a)any funds held by the Husband in any bank, building society, credit union or other financial institution;

(b)any motor vehicle registered in the name of the Husband;

(c)any interest in any shares held by or on behalf of the Husband;

(d)all personal items, furniture, household items and tools in the possession of the Husband;

(e)except as set out at paragraphs 11-15 below, any interests in any Superannuation benefit held by or on behalf of the Husband.

Other Liabilities

10Except as otherwise provided, each party be solely liable for and pay, indemnify and keep indemnified the other in relation to:

(a)any liability encumbering any item of property to which that party is entitled;

(b)any loans and other liabilities including credit cards which are in that party's name; and

(c)any current and future income tax liability that may be incurred in that party's name.

Splitting order for the Husband's AMP superannuation fund:

11The Court allocates, as required by Section 90MT(4) of the Family Law Act 1975, a base amount of $48,352 to the Wife out of the Husband's interest in the AMP Superannuation Plan ("the Fund").

12In accordance with Section 90MT(1)(a) of the Family Law Act 1975;

a.the Wife is entitled to be paid, using the base amount allocated in the immediately preceding Order, the amount calculated in accordance with Part 6 of the Family Law (Superannuation) Regulations 2001; and

b.the entitlement of the Husband in the Fund is correspondingly reduced by force of this Order.

13The trustee of the Fund is AMP Superannuation Limited ("the Fund Trustee"). The Fund Trustee shall do all acts and things and sign all such documents as may be necessary to:

(a)calculate, in accordance with the requirements of the Family Law Act 1975 the entitlement awarded to the Wife in the preceding clauses of this Order, and

(b)pay the entitlement whenever the Fund Trustee makes a splittable payment from the Husband's interest in the Fund.

14These orders have effect from the operative time and the operative time for the purpose of these Orders is four business days after service of a certified copy of the sealed final court orders upon the Fund Trustee.

15Having been afforded procedural fairness, these Orders are binding on the Fund Trustee.

The court notes that:

(a)The value of the non-member spouse interest is calculated in accordance with the SIS Regulations; and

(b)Any payments from the Husband's superannuation interest in the Fund made after the Fund Trustee has created a new interest in the Wife's name in the Fund are not splittable payments in accordance with the requirements of the Family Law (Superannuation) Regulations 2001.

Execution of Orders:

16In the event that the Husband fails to execute a deed or instrument as required pursuant to these Orders within 21 days of the date the Wife (or her agent) sends the Husband a written request to do so, then the Principal Registrar of the Family Court of Western Australia may upon receiving a written request from the Wife, execute the deed or instrument in the name of the Husband.

2The proceedings otherwise be and are hereby dismissed.

13I now publish my reasons.

Background

14As seen, the parties had cohabitated as a de facto couple since 2000, were subsequently married, and separated on a final basis in October 2014.

15It was the case for the wife that the parties were separated under the one roof for a period prior to their final physical separation in late 2014.

16The wife was born [in] 1959 and is currently 58 years of age. The husband was born [in] 1960 and is currently 56 years of age.

17Although the relationship between the parties was childless each of the parties had children of prior relationships. The wife has two daughters; [J] now aged 25 years and [M] now aged 23 years, both of whom are adult and described by the wife as being financially independent.

18The husband has a son aged 25 years who is also said by the wife to be financially independent.

19The wife’s two daughters resided with the husband and the wife from cohabitation until separation, however, the husband’s son did not.

20At the commencement of the relationship the husband had no significant assets and had advised the wife that he had no debts although he subsequently revealed that he did have debt, to which I refer later in these reasons.

21The wife, however, owned [Property C] [in Victoria], which was subject to a mortgage secured loan in favour of St George Bank. She had a car, some modest savings and apart from the debt to St George secured by mortgage had no other debts.

22Upon cohabitation in December 2000 the wife tenanted Property C and she and her then two young daughters moved into the husband’s rented property. The wife was working full time and described herself as having “earned a sufficient income as [an] administrator to support my 2 daughters and myself”.

23The husband was working full time as a self-employed [gardener] with a contract to a [business]. His income was at that time less than the wife’s.

24In 2001 the parties made the decision to purchase a home in [South Australia] [Property D] for the sum of $166,500. It was agreed that the parties would combine their savings as a deposit and borrow the balance by way of a joint mortgage. At that time the wife had accumulated $14,000 in savings to contribute to the deposit and the husband informed her that he had a similar amount. In the end, however, the wife contributed the sum of $14,844 towards the deposit, the husband contributed only $3,500. As the husband was unable to provide the lender sufficient documentation regarding his income and taxable earnings, Property D was purchased and registered in the sole name of the wife, in order to facilitate the sale proceeding.

25It later emerged that the sum contributed by the husband has been borrowed via a personal loan. Indeed, it transpired that the husband had forged documents to the intent of misleading the wife as to the extent of savings held by him.

26After the settlement on the property, the husband, once meeting his obligation to pay the funds borrowed for the deposit, did not have sufficient funds to contribute to the mortgage repayments. It was the wife’s evidence that during the first year after purchase of Property D the husband contributed “less than 25% of the mortgage loan repayments”.

27It was the wife’s case that in light of the parties unequal contributions towards the purchase of Property D, the parties “agreed at this time that all future property between us was to be purchased as tenants in common in approximate proportion to our contribution, [the husband] holding a 25% share and [the wife] holding a 75% share”.

28The wife was subsequently to learn that the husband had other debts that he had not disclosed, in particular child support arrears of approximately $21,000 (consisting of $10,000 in arrears and $11,000 interest), an overdue tax debt of approximately $7,000 and unpaid fines of $1,500.

29The wife was able to negotiate successfully with the Child Support Agency to waive the husband’s interest payment upon the payment of a lump sum of $10,000 to discharge the child support arrears. This sum was subsequently paid using a redraw facility on the mortgage which increased the debt secured as against Property D. Similarly, the outstanding payment to the Australian Taxation Office was made by a further drawing against the mortgage.

30In July 2003 the parties jointly purchased [Property E]. The equity in Property D was utilised as security and again the property was purchased between the parties as tenants in common in unequal shares with the husband holding 25 per cent and the wife 75 per cent, reflective of the parties’ agreement.

31In December 2003 the wife sold her Property C and the net proceeds of sale of approximately $118,500 were deposited in reduction of the mortgage on Property E.

32Property E was sold in December 2008. In the meantime the parties had purchased a property [in] Victoria [Property B]. The parties held the property as tenants in common in unequal shares with the husband holding 25 per cent and the wife 75 per cent.

33In 2008 the husband secured a job with [Company A] in Western Australia and given the advancement opportunity that was represented to the husband the family moved as a whole to Western Australia in November 2008.

34The parties purchased a property [in] Western Australia [Property A] where they lived from 2008 until their separation.

35The wife says it was the common intention of the parties that the property again would be purchased in unequal shares as tenants in common in the ratio 75 per cent to the wife and 25 per cent to the husband.

36The wife deposed that at the time of purchase in 2009 she was ill and distressed having recently been diagnosed with [various medical conditions]. When the parties purchased the property the real estate agent had apparently marked that the parties were to acquire the property as joint tenants and were registered as such upon settlement of the purchase, however, due to the wife’s illness and personal circumstances she did not pursue her objection prior to settlement.

37Subsequent to the wife’s recovery she raised the issue with the husband, however he would only agree to transfer the ownership to tenants in common in equal shares rather than unequal shares as their properties had previously been held and as would have reflected the parties’ original intention.

38Property A is an “older style fibro home” and upon purchase the parties’ had agreed that the husband would undertake renovations and improvements. To facilitate this, a smaller secondary loan was taken out against the property. The husband commenced these renovations in 2011.

39In December 2015 Property B was sold for the sum of $370,000, however, the same financier also held a mortgage on Property A and refused to discharge the mortgage on Property B, which was collateral security for Property A, unless the sum of $24,220 was paid to reduce the mortgage debt secured as against Property A. The sum of $24,220 was accordingly paid in reduction of the Property A mortgage and an amount of $105,617, being the net proceeds of sale of Property B remaining thereafter, is and remains held on trust by the conveyancer “pending agreement or court order” as to its distribution.

40In essence, the wife seeks to now vary the title to Property A and also seeks payment to her of the entire balance of the proceeds of sale of Property B together with a superannuation split in her favour.

The composition of evidence

41The wife relies upon her trial affidavit and statement of financial circumstances filed 20 June 2017.

42As seen, the husband has failed to respond to the application and an order has previously been made for the matter to proceed on an undefended basis. Accordingly the wife’s evidence is unchallenged.

The approach to be adopted

43In Stanford v Stanford (2012) 247 CLR 108 the High Court of Australia determined that prior to making any order for variation of property the Court must first be satisfied that it is just and equitable to make an order. This requires an identification of the property held and the interests of the parties therein and to thereafter determine whether it is just and equitable to make any order by way of variation of property pursuant to the Act.

44The known property of the parties is identified in a schedule of assets and liabilities provided by the wife to the Court on 22 September 2017 which matches that set out in her trial affidavit as served upon the husband.

45The wife described the known assets thus:

JOINT ASSETS	CURRENT VALUE
[Property A]	$325,000
Proceeds held by [Conveyancer A] –being remaining proceeds from the sale of [Property B]	$116,366.19
WIFE’S ASSETS
Comsec Trading Account	$2,658
Bank accounts	$500
HUSBAND’S ASSETS
[Mazda 3] 2012 vehicle	$18,000
[Company A] Shares	$2,972
Bank accounts	Not known
Camper Trailer	$1,000
TOTAL ASSETS	$466,496.19
JOINT DEBTS
Mortgage to St George Bank secured by [Property A]	($303,194)
WIFE’S DEBTS
Tax debt for Capital Gains tax on sale of [Property B]	($7,490)
HECS/HELP Debt	($8,100)
HUSBAND’S DEBTS
Car loan for [Mazda 3]	($12,000)
TOTAL DEBTS	($330,784)
NET ASSETS EXCLUDING SUPERANNUATION	$135,712.19
SUPERANNUATION
Wife’s Superannuation	$62,906
Husband’s Superannuation as at 30 September 2016	$118,529
NET ASSET POOL including Superannuation	$317,147.19

46As seen, the wife seeks to vary the parties’ interests in the known asset pool to accord with the parties’ prior agreement and acknowledgment of the unequal contributions made by them during the course of their relationship. In particular, this has been represented by way of title in all properties other than Property A, where the same was registered as joint tenants in the circumstances described above.

47The unchallenged evidence of the wife supports a finding that it is just and equitable for an order to be made. Further, any presumptions as to the use or benefit of the property that may have existed during the subsistence of the parties’ relationship and irrespective of title during that time no longer apply. As the High Court of Australia observed in Stanford v Stanford (supra) this of itself may render the making of an order just and equitable.

48Upon the Court being satisfied that it is just and equitable to make an order, the Court must then determine what order is just and equitably made in the circumstances of the parties having regard to the respective contributions of the parties as prescribed in s 79(4) of the Act as follows:

(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.

49Contribution, as referred to in s 79(4), is a very broadly based concept and includes both financial and non-financial, direct and indirect contribution and those made by a party or on behalf of a party, and contribution made to the welfare of the family including contribution as a parent and homemaker.

50The respective contributions are not ranked and neither is presumed nor mandated to have a greater weight than the other.

51I have set out above the initial contributions made by the wife through her prior ownership [of] Property A and the acceptance throughout the relationship, prior to the circumstances described surrounding the acquisition of Property A, as to the identification of the unequal contributions made by the parties.

52Having regard to the misrepresentations made by the husband as to his financial circumstances it may well be considered that the 75/25 ratio adopted for the parties’ holding of the property was generous to the husband.

53By way of other contribution, however, the wife acknowledges that throughout the relationship the husband worked full time and contributed the majority of his income towards the household, which included her two daughters. The wife also worked full time throughout the relationship save and except for two periods when her health prevented her from working, the first of which coincided with the acquisition of Property A as referred to above and the second in 2013.

54Between 2009 and 2010 the wife was treated for two [serious medical conditions] and was unable to work. She re-joined the workforce in November 2010 at [Business A] and then took a further period of leave in December 2013 to undergo further surgery. She deposed that from the commencement of the parties’ relationship until 2008 her income was “slightly higher” than that of the husband.

55After the move to Perth in 2008 the husband’s income position improved through his employment with Company A and his income was said by the wife to be “slightly higher than my full time income”.

56By way of non-financial contribution the wife says that she undertook the majority of the housekeeping and yard maintenance and was the primary carer for her two daughters acknowledging however, that the husband made a positive contribution as a step parent to J and M. The wife also undertook responsibility for managing the parties’ finances.

57Prior to the parties’ move to Western Australia the husband had lost his [gardening] contract and was unemployed for some time before obtaining casual employment through the wife’s connections. Through the wife’s efforts in obtaining the husband’s [previous employment] records it was found that through prior learning undertaken with [a government agency] the husband had proven his suitability for employment in the area of [plumbing], which is reflected in the position he now holds with Company A.

58The wife ceased her employment at Business A in March 2014 and elected to return to study to achieve qualification as a [nurse]. She obtained that qualification in February 2016 and now works in a related field.

59To complete the qualification, however, it was necessary for her to undertake study in Victoria. During this period she received no financial support from the husband, her health was poor and she lived on Centrelink entitlements and a small amount of savings. She obtained some casual work and ultimately was successful, having completed her qualifications, in securing a full time position as a nurse in Victoria [at] [Business B].

60It was the wife’s evidence that whilst she was working with Company C she received frequent calls from the bank and creditors demanding payments relating to the loan secured against Property A. She elected to return to Western Australia and did so in December 2016. Upon her return she actively sought employment, which she secured in March 2017 in her current role as a [nurse] co-ordinator with [Business C] in Perth.

61Between the parties’ separation in October 2014 until December 2016 the husband continued to live in Property A.

62From July 2016 until December 2016 the husband did not make any of the monthly mortgage payments on the property despite occupying the home. Prior to separation the wife had paid in excess of the monthly amounts such that the mortgage payments were at separation in advance. That advance was depleted through the default of the husband and by November 2016, as discussed, the mortgagee began contacting the wife regarding non-payment.

63After receiving calls from the mortgagee the wife attempted to contact the husband by email and telephone without success. She also became aware that the shire and water rates were due and unpaid as of June 2016.

64After repeated requests by the wife to the husband, the husband agreed to execute a selling agency agreement for the sale of Property A and an agent was appointed on 31 October 2016.

65The property was listed for sale from November 2016 until 3 March 2017, however, no offer was made by any prospective purchaser and negative feedback was received through the agent that the marketability of the property was affected by its presentation, the incomplete renovation and current market conditions. Further, the husband did not participate in the sale. During the time that the wife was in Victoria she had received advice from the selling agent that the property was “dirty, neglected, in poor presentation and had unfinished renovations and electrical work required” which impacted negatively the marketability of the property.

66The wife advised the husband by email on 18 November 2016 that she would be returning to the home to assist in the better preparation of Property A for sale and she resumed occupancy of the home in December 2016. She received no response. She described her observations of the property upon her return in her trial affidavit at para 70 thus:

70. Upon my return to [Property A], I observed that:

a. The house was in a state of obvious uncleanliness and disrepair, with electrical wiring hanging down, unfinished gyprocking on walls, unfinished flooring, many gaps throughout the house as a result;

b. There was rodent faeces throughout the house and obvious presence of extensive mice and rats,

c. The lawns were dead and unmowed, with head high weeds,

d. There were pieces of broken furniture, building materials and a rusted trailer in the yard,

e. There were old damp towels lying around the flooring to absorb leaks and dampness,

f. The garage was filled with junk and debris.

67The wife, not unreasonably, formed the view that the husband had no concern for the presentation of the property nor was he living in the property in any substantive way.

68The renovations that had been commenced in 2011 were incomplete and had not been progressed since the parties’ separation.

69Since resuming occupancy of Property A the wife has negotiated with creditors as to the discharge of arrears thereby avoiding the mortgagee coming into possession of the property and affecting a mortgagee sale. Similarly, she negotiated payments with the [relevant] Council, Synergy Energy, WA Water and Kleenheat Gas and has had services previously disconnected by utilities suppliers, reconnected.

70As seen, the husband has not responded to the proceedings nor has he made any disclosure as to his current financial position. I note the husband provided very limited disclosure to the wife on 11 November 2016 in the form of his AMP superannuation statement dated 30 September 2016 and a [Company B] final dividend statement dated 15 September 2016. Further, communications between the husband and the wife or her legal representative have been virtually non-existent, although not for lack of trying on the wife’s part.

71The wife understands that the husband continues to work full time for Company A on a fly-in fly-out basis and that he regularly travels [overseas], a conclusion drawn from bank entries , specifically the transfer of monies to an account based [overseas] from joint accounts previously operated by the parties.

72In the circumstances of the wife’s contribution and the circumstances of the acquisition of Property A notwithstanding title, as outlined above, I am satisfied that the position of the wife that contribution should be assessed 75 per cent/25 per cent in her favour is soundly based.

73Having made that determination I must have regard to the factors prescribed under s 75(2) of the Act as to whether there should be any further adjustment to the contribution based assessment to achieve a just and equitable result, by reference to the factors prescribed in s 75(2) which are as follows:

(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)a 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.

74In her evidence the wife has referred to the s 75(2) factors in a limited way but particularly as to the parties’ earning capacities. She deposed in her trial affidavit that:

79. As of 2017 I am currently employed full time at [Business C] as their [Nursing Coordinator]. I hope to secure a loan at the bank to refinance the property solely in my name. I hope to continue in full time employment and then hope reduce to part time employment until retirement, however I am realistic about my health and I have had medical advice and recommendations to accept only moderate/part time hours of employment as managing stress is paramount to preventing a relapse of disease and to manage the current physical discomfort from sitting long term.

80. [Mr Gladwin] is employed full time. I understand that [Mr Gladwin’s] employment is very secure. I understand that [Mr Gladwin’s] current salary is approximately $130,000 as a base salary.

81. [Mr Gladwin] is in good health and he has not made me aware of any matters that would affect his earning capacity.

75I note that in the wife’s position in her papers for the judicial officer regarding the husband’s income slightly differs; here she asserted the husband’s base salary was approximately $130,000 to $150,000 and that he was the recipient of bonus payments and entitlements.

76As seen above in the schedule of assets and liabilities, each of the parties has superannuation entitlement and in the case of the husband the majority of the same being accumulated during the course of the parties’ relationship.

77Further, I am satisfied that the circumstances of the husband’s continuing failure to engage in the resolution of financial matters as between the parties, and in particular his failure to disclose his financial circumstances or any assets that he may hold is a factor that prevails against him. I also accept that his failure to do so has caused financial imposition upon the wife through her inability to access the proceeds of sale of Property B and the need to meet expenses incurred through the default of the husband during the period he occupied Property A.

78In the circumstances I am satisfied that the orders proposed by the wife are just and equitable and represent a division of property which is as tabulated below:

JOINT ASSETS	CURRENT VALUE	WIFE TO RETAIN	HUSBAND TO RETAIN
[Property A]	$325,000	$325,000
Proceeds held by [Conveyancer A] –being remaining proceeds from the sale of [Property B]	$116,366.19	$116,366.19
WIFE’S ASSETS
Comsec Trading Account	$2,658	$2,658
Bank accounts	$500	$500
HUSBAND’S ASSETS
[Mazda 3] 2012 vehicle	$18,000	$18,000
[Company A] Shares	$2,972	$2,972
Bank accounts	Not known
Camper Trailer	$1,000	$1,000
TOTAL ASSETS	$466,496.19	$445,524.19	$20,972
JOINT DEBTS
Mortgage to St George Bank secured by [Property A]	($303,194)	($303,194)
WIFE’S DEBTS
Tax debt for Capital Gains tax on sale of [Property B]	($7,490)	($7,490)
HECS/HELP Debt	($8,100)	($8,100)
HUSBAND’S DEBTS
Car loan for [Mazda 3]	($12,000)	($12,000)
TOTAL DEBTS	($330,784)	($318,784)	($12,000)
SUPERANNUATION
Wife’s Superannuation	$62,906	$62,906
Husband’s Superannuation as at 30 September 2016	$118,529	$48,352	$70,177
NET ASSET POOL including Superannuation	$317,147.19	$364,738.19	$79,149
Percentage of net asset pool	75%	25%

79I am also satisfied that a superannuation split is just and equitably ordered as sought, given that accumulation of the superannuation entitlements to the husband occurred predominately during the subsistence of the relationship. This also accords with the overall percentage split sought by the wife which in essence acknowledges that a portion of the husband’s superannuation entitlements would have accrued post separation, albeit in circumstances where the wife has found herself ultimately responsible for financial matters that should have been the responsibility of the husband whilst in possession of Property A.

80For these reasons I was satisfied that the orders were just and equitably made as I did on 22 September 2017.

I certify that the preceding [80] paragraphs are a true copy of the reasons for
judgment delivered by this Honourable Court

Associate
10 October 2017