HADLOW and BROSNAN
[2014] FCWA 23
•11 APRIL 2014
JURISDICTION : FAMILY COURT OF WESTERN AUSTRALIA
ACT: FAMILY LAW ACT 1975
LOCATION: PERTH
CITATION: HADLOW and BROSNAN [2014] FCWA 23
CORAM: WALTERS J
HEARD: 4 MARCH 2014
DELIVERED : 5 MARCH 2014
PUBLISHED : 11 APRIL 2014
FILE NO/S: PTW 5077 of 2006
BETWEEN: MS HADLOW
Applicant
AND
MR BROSNAN
Respondent
Catchwords:
FAMILY LAW – PROPERTY – alteration of property interests under the Family Law Act (1975) (Cth) – consideration of the parties’ respective contributions – where the husband and the wife failed to make full and frank disclosure of their respective financial positions – parties’ conduct as litigants - where the wife failed to comply with orders – matter heard undefended - where the husband has significant tax liabilities – consideration of Stanford and Stanford (2012) 87 ALJR 74 and Bevan & Bevan [2013] FamCAFC 116
Legislation:
Family Law Act 1975 (Cth), s 75(2), s 79, s 79(2), s 79(4)
Category: Not Reportable
Representation:
Counsel:
Applicant: No appearance
Respondent: Self Represented Litigant
Solicitors:
Applicant:
Respondent: Self Represented Litigant
Case(s) referred to in judgment(s):
Bevan & Bevan (2013) 49 Fam LR 387
Black & Kellner (1992) FLC 92-287
Bolger & Headon [2014] FamCAFC 27
Briese & Briese (1986) FLC 91-713
C & C (2005) FLC 93-220
Chang v Su (2002) FLC 93-117
Clauson & Clauson (1995) FLC 92-595
Dickons & Dickons[2012] FamCAFC 154
Ferraro & Ferraro (1993) FLC 92-335
G & G [2004] FamCA 1179
Giunti & Gianti (1986) FLC 91-759
Gould & Gould (2007) FLC 93-333
Hickey & Hickey & Attorney-General for the Commonwealth of Australia (Intervener) (2003) FLC 93-143
Idoport Pty Ltd v National Australia Bank Ltd [2001] NSWSC 1081
Jennis & Jennis [2013] FCWA 81
K & K [2002] FamCA 1150
Lee Steere & Lee Steere (1985) FLC 91-626
Mezzacappa & Mezzacappa (1987) FLC 91-853
Myers v Myers [1969] WAR 19
Oriolo & Oriolo (1985) FLC 91‑653
Pastrikos & Pastrikos (1978) 31 FLR 524
Pastrikos & Pastrikos (1980) FLC 90-897
Re Chemaisse; Federal Commissioner of Taxation (Intervener) (1990) FLC 92-133
Reed and Reed and Draper (1995) FLC 92-649
Stanford v Stanford (2012) 87 ALJR 74
Steinbrenner & Steinbrenner [2008] FamCAFC 193
Waters & Jurek (1995) FLC 92-635
Weir & Weir (1993) FLC 92‑338
White & White (1995) FLC 92-648
Whitely & Whitely (1996) FLC 92-684
WORDS IN SQUARE BRACKETS REPLACE WORDS USED IN THE ORIGINAL JUDGMENT - PARTIES’ NAMES AND IDENTIFYING DETAILS HAVE BEEN CHANGED
Introduction
1Before the Court are the parties' competing applications for property settlement.
2The wife filed an application initiating proceedings on 8 September 2006. The husband filed a response on 5 October 2006. The wife's application initiating proceedings has been amended and re-amended since that time.
3The parties' claims and counterclaims became progressively more convoluted and unstructured as the proceedings progressed. As issue piled upon issue, both parties appeared to lose sight of the wood for the trees.
4The trial seems to have commenced, before her Honour Justice Martin, on 3 September 2009. It continued in a disjointed fashion until 4 April 2012. There were a total of seven sitting days over that period.
5Both parties were self-represented at trial.
6It seems clear that the parties (and the Court) regarded the proceedings as having concluded on 4 April 2012 – subject to the parties filing and serving written submissions.
7Her Honour Justice Martin died on 1 October 2012.
8As a result of her Honour's death, and because her Honour had not yet delivered her judgment in the proceedings, a directions hearing was held on 13 November 2012. The hearing was conducted by the Chief Judge.
9The husband attended but the wife did not.
10The outcome of the directions hearing was that the proceedings were assigned to another judge (namely, me) "for finalisation". Further orders were made as follows:
1.The assigned Judge be given access to, and (subject to his or her discretion) make use of all notes and draft reasons already prepared by the Honourable Justice Martin.
2.The orders made this day do not infringe any right of appeal the parties may have in respect of the Judgment ultimately delivered by the assigned Judge.
3.The parties, if requested, attend at any such further hearing as the assigned Judge may consider appropriate (in the event that the assigned Judge seeks further submissions in relation to specific issues or seeks that any party give further evidence limited to such specific issues).
4.The parties have liberty to apply to set aside or vary this order, such liberty to be exercised by not later than 20 November 2012.
11The final order referred to in the preceding paragraph was made because the wife did not attend the hearing on 13 November 2012.
12Neither party, however, applied to vary or set aside the orders of 13 November 2012.
Background
13In these Reasons, and unless otherwise indicated:
a)all statements of fact comprise findings of fact;
b)I have referred to the parties as the wife and the husband (and I mean them no disrespect by doing so), because it is less confusing than referring to them as the applicant and the respondent; and
c)I have not drawn a distinction between proceedings before a family law magistrate and proceedings in the Family Court of Western Australia.
14The wife was born [in] 1971; the husband [in] 1968. It follows that they are now 43 and 45 respectively. They began living together in or about December 1990 and married [in] 1992. They finally separated [in] 2005.
15There are two children of the marriage, both of whom are now adults. [Child A] was born [in] 1993, and [Child B] was born [in] 1994. They are now 21 and 20 respectively.
16The wife filed an initiating application on 8 September 2006. The application related to property matters only.
17The first orders made in the proceedings are dated 18 October 2006. They include various injunctions and procedural directions. Other court events followed, but they are not currently relevant.
18On 28 November 2006, consent orders were made dealing with parenting issues. Relevantly, an order was made for the appointment of an independent children's lawyer for Child A and Child B (who were then under the age of 18).
19Further property and procedural orders were made on 13 December 2006, pursuant to Reasons for Decision delivered by Mr C J Judges M on that day. In his reasons, the learned Magistrate recorded that "one of the most important goals of the wife is for her to retain the family home at [Property C]". He added:
The Court is of the opinion that the husband must be provided with approximately $20,000 to live on and re-establish himself outside the family home. Presently, the husband has nowhere to live. He has no motor vehicle and no money.
20Other court events followed, but they are not presently relevant.
21The wife applied for a divorce on 28 November 2006. The husband filed a response to the application for divorce on 17 January 2007, in which he disputed the date of separation. On 19 June 2007, he was granted leave to withdraw his response and the divorce was granted.
22On 23 July 2007 the husband was ordered to contribute $836.48 towards the wife's costs in relation to her divorce application.
23On the same day, consent orders were made to the effect that the wife have sole parental responsibility for Child A and Child B and that they live with her. A further order was made to the effect that the children spend time with and communicate with the husband "in accordance with their wishes from time to time". Other parenting orders were also made, and other court events followed, but they are not presently relevant.
24On 1 February 2008, further injunctive and procedural orders were made, and the wife was ordered to contribute $450 to the husband's costs associated with his application in a case filed 19 December 2007.
25Orders were made on 27 March 2008 and 14 April 2008 dealing, in the main, with procedural issues. The orders also contained injunctions and an order that the wife contribute $500 to the husband's costs.
26Other court events followed, but, again, they are not presently relevant.
27The vast majority of the court events and orders made between October 2006 and October 2009 dealt with procedural matters and involved applications for and orders granting extensions of time to file various documents, or to comply with pre‑existing orders.
28The trial commenced before Martin J on 16 October 2009 (Day 1). It was adjourned to 19 October 2009 (Day 2), at which point various procedural orders were made, designed to ensure that the parties would be better prepared to proceed on the adjourned date. In addition, the husband was restrained by injunction from "dealing with, disposing of or encumbering any of his assets in his possession, including any assets held by any person on his behalf". The injunction was extended to include various entities associated with the husband. Despite the October orders, it was necessary to further adjourn the matter to 3 December 2009.
29Further procedural orders were made on 17 November 2009.
30The trial resumed on 3 December 2009 (Day 3), but was soon adjourned again – this time, to 12 January 2010. Once again, procedural orders were made.
31The trial resumed on 12 January 2010 (Day 4), but the hearing was only brief and the proceedings were once again adjourned – this time to 12 February 2010. From there they were adjourned to 14 June 2010, this time due to judicial unavailability).
32Further procedural orders were made on 14 May 2010.
33The trial did not proceed further on 14 June 2010. Instead, further directions were made and the proceedings were adjourned to 24 June 2010, and from there to 30 June 2010. Further procedural orders were made on 19 August 2010 and 10 September 2010.
34Additional injunctive relief was granted on 22 September 2010. Further procedural orders were made on the same day, and again on 14 and 28 October 2010, 24 November 2010, 22 December 2010, 10 January 2011, 13 January 2011 and 11 February 2011.
35The trial resumed on 25 February 2011 (Day 5).
36It seems that, following the resumption of trial on 25 February 2011, there were no court events for approximately 11 months.
37The proceedings came before Martin J on 23 January 2012. The husband attended on that day, but the wife did not. When the wife was contacted by court staff, she indicated that she would not be able to attend due to the medication that she was then taking. Once again, an adjournment was granted.
38The trial resumed on 10 February 2012 (Day 6). The hearing occupied most of the day. Procedural orders were then made adjourning the proceedings to 4 April 2012.
39The last time the proceedings came before Martin J was on 4 April 2012 (Day 7). On that day, her Honour made the following orders, seemingly in an effort to bring the proceedings to an end:
a)Until further order, the wife and the husband be restrained by injunction from dealing with, or disposing of any property.
b)Within 14 days, the husband file and serve his written submissions, together with a further affidavit.
c)Within 28 days, the wife file and serve her written submissions, together with a further affidavit.
d)Within 14 days of service of the wife's documents, the husband have leave to file and serve written submissions and an affidavit in response.
Decision to proceed on an undefended basis
40As a result of the directions made by the Chief Judge on 13 November 2012, I spent many days reviewing the extraordinary volume of material comprising the court file in this case. That material casts neither party in a positive light. Both parties' behaviour as litigants has been appalling.
41I eventually concluded that it would not be possible to write a judgment on the basis of the evidence then before the Court. The evidence was fragmented, and much of it was largely irrelevant to the matters the Court was required to decide. The transcripts revealed hearings which were interrupted and unstructured, and in which the parties did not hesitate to argue with, speak over and insult each other. They frequently treated each other with disrespect. It is clear from the transcript of the hearing on 10 February 2012, for example, that during the course of the husband's cross-examination of her, the wife was quite determined to avoid answering questions wherever possible, and to debate every issue with the husband.
42After careful consideration I resolved that the only way to bring the proceedings to a close would be to conduct a rehearing. That being the case, I arranged for the proceedings to be listed for directions on 1 October 2013. The purpose of the hearing was to advise the parties that a rehearing was required and to make directions facilitating the same.
43Both parties were present at the hearing on 1 October 2013. I explained to them why it was that I felt unable to deliver a judgment on the basis of the material then available to me. I also explained that the matter would have to be re-heard.
44I listed the matter for a two day hearing and said to the parties – in no uncertain terms – that I would not permit them to rely on anything that had been filed to date. I explained that they would have to "tell the story again" in fresh, "stand alone" affidavits. I also made detailed directions as to how the matter was to proceed, and included it in the November 2013 Callover, on the basis that the matter was to be dealt with at trial in February or March 2014.
45The parties were advised that they would be given access to the court file and to the transcripts of the previous hearings, and that if they wished to refer to transcript references they were required to do so by page and by line number.
46Paragraph 3 of the orders made on 1 October 2013 is as follows:
The applicant wife must file and serve the following documents by not later than 4 PM on Friday, 15 November 2013:
•a stand alone trial affidavit limited to a maximum of 25 pages (excluding annexures;
•a current Form 13 Financial Statement;
•a Minute of the orders to be sought at trial; and
•a current schedule of assets and liabilities.
47The husband was required to file similar documents by 4pm Friday 20 December 2013.
48Paragraphs 5 and 6 of the orders of 1 October 2013 are as follows:
5.Subject to paragraph 6 below, each party may annex a maximum of 15 documents to his/her trial affidavit.
6.The annexures to the parties' trial affidavits may comprise annexures to previous affidavits filed in these proceedings and/or fresh documents, but must not comprise any previously filed affidavits themselves.
49The obligations of the parties pursuant to the orders of 1 October 2013 were clear. I, as the trial judge, was not prepared to wade through hundreds, if not thousands, of pages of transcripts, affidavits, exhibits and the like. The parties were directed to prepare their cases carefully, and to bring them up to date so that the matter could be dealt with efficiently and effectively at the trial.
50The transcripts of the previous hearings before Justice Martin contain many examples of her Honour advising the parties of the Court's obligation to identify their assets and liabilities as at the date of trial in order to make determinations regarding the contributions that each party has made and any adjustments that might be necessary under s 75(2) in order to reach a just and equitable result.
51Much of the dispute between the parties has focused on the post-separation behaviour of each of them. In my opinion, disproportionate emphasis was placed on that issue, but I accept that it was of significance to the parties. Nevertheless, the orders made on 1 October 2013 are clear, and were reinforced by comments made on the day as to what was required of both parties.
52The wife failed to comply with the orders of 1 October 2013.
53The rules and case management guidelines applicable in this Court oblige it to conduct cases efficiently and with a minimum of delay. Regrettably, and as has been made clear earlier in these Reasons, these proceedings have had anything but a minimum of delay. Indeed, they have been beset by constant delays. Many of the hearings have been unstructured and confusing, and therefore unhelpful. The proceedings have also seen each of the parties fail to comply with orders and directions at various times. The reality is, however, that the proceedings must be brought to an end. If they are not, then there is a real risk that a serious injustice could occur.
54On 20 November 2013, the husband filed an application in a case seeking leave to proceed on an undefended basis. The application was founded on the wife's failure or refusal to comply with the orders of 1 October 2013.
55The wife did not appear on the return date of the husband's application for leave to proceed on an undefended basis (being 23 December 2013). I declined to deal with the application in her absence and adjourned it to the first day of trial.
56Although the wife had still not filed her trial documents in accordance with the orders of 1 October 2013, she appeared on the date fixed for trial pursuant to those orders, being 4 March 2014. She could offer no explanation for her failure to comply with the orders of 1 October 2013, and made no real attempt to respond to the husband's application for leave to proceed on an undefended basis. She (metaphorically) threw her hands in the air and left it to the Court to determine what should occur.
57After delivering ex tempore reasons for decision, I ordered that the husband have leave to proceed with the trial on an undefended basis and that the case be determined as if it were undefended. The hearing was then conducted on the basis of the evidence presented by the husband, subject to a number of queries which I directed to him.
58My ex tempore reasons (as delivered on 4 March 2014, although revised to repair formal or grammatical errors or awkward phraseology) are set out below.
Revised ex tempore reasons delivered on 4 March 2014
59The husband's application for leave to proceed on an undefended basis is somewhat analogous to an application by a party in default for an adjournment of proceedings in order to enable that party to remedy the default or otherwise prepare his or her case for trial. In such cases, and in broad terms, the Court is required to deal with two distinct concepts. Those concepts of been described as "the injustice principle" and "the court resources principle": see Reed and Reed and Draper (1995) FLC 92-649.
60The injustice principle has been summarised as follows (see Idoport Pty Ltd v National Australia Bank Ltd [2001] NSWSC 1081, citing Myers v Myers [1969] WAR 19 at 21):
It has become a firmly established principle that where the refusal to grant an adjournment would result in serious injustice to one party, the adjournment should be granted unless in turn this would mean serious injustice to another party.
61In other words, the injustice principle requires a court to balance the possible or probable injustice occurring to each party if an adjournment is or is not permitted. Similar considerations apply to the question of whether a party should be given leave to proceed on an undefended basis.
62In this case, and since 1 October 2013, the husband has complied with the orders of the Court while the wife has not. She has provided no explanation for her failure to comply with very clear orders. The husband has suffered health problems in the past and, in my opinion, these proceedings have continued in the confused and disjointed manner I have described for far too long. I find that there will be a very serious injustice to the husband if an adjournment were to result from the wife’s request to participate in the proceedings in spite of her non-compliance with the orders of 1 October 2013. Indeed, a very serious injustice would arise if the wife were to be permitted to involve herself in these proceedings at all, bearing in mind her wholly unexplained decision not to comply with orders designed to ensure that the issues for trial would be as clear, current, confined and relevant as possible and that the trial itself would proceed in an orderly, structured and efficient manner.
63As I have indicated, there are other considerations beyond those which have been described as the injustice principle. A second set, falling under the general heading of case management considerations, has been described as the court resources principle. I need not elaborate unduly on that principle. It is described and discussed in Reed and Reed and Draper, starting at page 82,569. It will suffice for the purpose of these reasons to note the cited comments of Lord Griffiths in Kettleman v Hansel Properties Ltd (1987) AC 189:
... another factor that a judge must weigh in the balance is the pressure on the courts caused by the great increase in litigation and the constant necessity that in the interests of the whole community legal business should be conducted efficiently. We can no longer afford to show the same indulgence towards the negligence conduct of litigation that was perhaps more possible in a leisured age.
64Similar comments appear elsewhere in Reed and Reed and Draper and are also discussed in the decision of the NSW Supreme Court in Idoport Pty Ltd v National Australia Bank (2001) NSWSC 1081 at [12] to [22].
65In summary, the court is entitled to take into account the interference with the court lists and prejudice to other litigants that an adjournment (or, in this case, allowing the wife to participate in the proceedings) would cause. This is to be considered in light of the very strong public interest in the proper use of the limited resources available for the administration of justice. Further, and as the Full Court said in Reed and Reed and Draper:
... the pace of litigation is ordered by the Court, not the legal representatives of the parties and not the parties. By a series of case management techniques, including procedural orders and directions and conciliation and pre-trial conferences, cases proceed along the litigation pathway. ... Lawyers and their clients ignore [case management principles] at their risk.
66I have already said that the conduct of this case has been chaotic and that this cannot be allowed to continue. The proceedings must be brought to an end as efficiently, effectively and fairly as possible. The wife has been given every opportunity to participate positively and constructively in the proceedings. She was present on 1 October 2013 when detailed orders were made to enable the trial to be commenced and completed within a two day period. She has failed to comply with those orders, and she has given no explanation for this failure. If the Court now permits the wife to involve herself in the proceedings, there is a very serious risk that the trial will not be concluded within the two days set aside for it and that there will be a further adjournment. That is so because if the wife wishes to file material at this stage, or to refer to material which she has not seen fit to identify beforehand, then the husband will need time to review the material and properly prepare his case. As night follows day, the proceedings will then simply descend back into the chaotic state which characterised them prior to 1 October 2013. In the most fundamental sense, the wife has sought to ambush the husband (as it were). That cannot be allowed to occur.
67In the circumstances of this case I am satisfied that it is appropriate to grant the husband leave to proceed on an undefended basis.
Documents relied upon
68It follows from the events described above that the only documents relied upon at trial were those filed by the husband in compliance with the orders of 1 October 2013. These documents comprise –
a)the husband's affidavit sworn 18 December 2013 (comprising a total of 4 pages, to which no annexures are attached);
b)the husband's affidavit sworn 18 December 2013 (comprising a total of 4 pages and 12 annexures); and
c)the husband's financial statement sworn 18 December 2013.
69I shall refer to the second affidavit (being the affidavit containing annexures A to L) as the husband's trial affidavit.
Relevant financial history
70It has long been accepted that, when assessing the weight to be attached to initial or subsequent contributions of the parties (or even when assessing the debts and liabilities of the parties) it is neither necessary nor desirable to apply a strictly mathematical or accountancy approach. Indeed, in relation to contributions, all that is usually necessary is to evaluate the weight that should be given to one party's contributions as compared to the weight that should be given to the other party's contributions. As discussed elsewhere in these Reasons, contributions come in many different guises and judicial officers inevitably have to weigh and assess forms of contribution which are dissimilar. It is not an exaggeration to describe the process as being akin to comparing oranges with apples. Such a process is not helped where, as here, the parties have lost sight of the wood for the trees.
71In Dickons & Dickons[2012] FamCAFC 154, for example, the Full Court said at [24]-[25]:
There can be little doubt that the classification of contributions by reference to terms such as “initial contributions”, “contributions during the relationship”, and “post-separation contributions”, can be helpful as a convenient means of giving coherent expression to the evidence in a s 79 case and to giving coherence to the nature, form and extent of the parties’ respective contributions. However, the task of assessing contributions is holistic and but part of a yet further holistic determination of what orders, if any, represent justice and equity in the particular circumstances of this particular relationship. So much is clear from the terms of s 79 itself and, in particular, s 79(2). The essential task is to assess the nature, form and extent of the contributions of all types made by each of the parties within the context of an analysis of their particular relationship.
Doing so is also consistent with the demands of authority that the ultimate assessment of contributions should be made without “…giving over-zealous attention to the ascertainment of the parties’ contributions…” (Norbis v Norbis (1986) 161 CLR 513 at 524) and the well-established recognition in the authorities ... that the process required of the Court by s 79 is the exercise of a wide discretion, not the performance of a mathematical or accounting exercise
72Coleman J accurately described the process (although from a slightly different point of view) in Steinbrenner & Steinbrenner [2008] FamCAFC 193 at [234]):
Given that the evaluation of contribution based entitlements inevitably moves from qualitative evaluation of contributions to a quantitative reflection of such evaluation, there will inevitably be a “leap” from words to figures. That is the nature of the exercise of discretion, whether it be in the assessment of contributions in a matrimonial cause, assessment of damages in a personal injuries case, or determination of compensation in a land resumption case. ...
73Regrettably, the parties' determination to chase every factual rabbit down its burrow (to use a colloquialism) while the proceedings were being conducted by Martin J had the effect of creating confusion where clarity and precision were required. Both parties were, of course, self-represented, and the Court cannot and does not expect them to be able to identify and focus on the core issues in proceedings in the same manner as legal practitioners are (theoretically, at least) capable of doing. Nevertheless, the parties may wish to bear in mind comments made by Muirhead J over 30 years ago when speaking of the obligations of legal practitioners in the family law jurisdiction [see Pastrikos & Pastrikos (1978) 31 FLR 524 at 526, cited in White & White (1995) FLC 92-648, at 82,558].
The philosophies of [the Family Law Act] are clear and should be borne in mind not only by judges but by counsel and solicitors. It is true the adversary system remains in the processes of determining contested issues. But the legal profession act as advisers, they are more than mouth pieces, more than puppets reacting to instructions. In this jurisdiction the functions of this Court are not often understood by parties in dispute. A bit of sound common sense and dispassionate legal advice will often go a long way in solving the issues confronted by people who have temporarily lost their sense of proportion ...
74There can be no doubt that the parties in this case lost their sense of proportion, although each would blame the other for his/her failing in that regard.
Early relationship
75The parties met and commenced a relationship in [Town A]. They later lived together in [Town B], [Coastal Town A] and [Town C]. They were married in Town A [in] 1992, but then returned to Town C.
76Neither party's initial contributions significantly outweighed the contributions of the other party. Each had relatively modest assets at the commencement of the relationship.
77The parties' first child, Child A, was born in Town C [in] 1993. The wife was her principal caregiver. The husband was employed as [a contractor].
78In or about mid-1993, the husband and a colleague, [Mr M], commenced a [contracting] business. The business was conducted by a corporate entity, [Company A].
79The parties' second child, Child B, was born [in] 1994. The wife was the principal caregiver for both children.
80The wife assisted the husband with his business activities to the extent that she was able to do so. Relevantly, she answered telephone calls, dealt with various inquiries, and did a variety of administrative (and some technical) work.
81In or about mid-1994, the business conducted by Company A was dissolved and the husband and the wife commenced trading under the business name [Company B]. Company B was operated from the parties' home. Again, the wife assisted the husband in the business to the extent that she was able to do so. She answered telephone calls, dealt with various inquiries, and did a variety of administrative (and some technical) work.
82In December/January 1994/5, the parties incorporated a company known as [Company C]. They were the sole directors and shareholders of the company. At the same time, Company C purchased a residential property [Property A] for $92,000. Property A was purchased using a deposit of approximately $22,000 paid from the Company C account. The balance was borrowed from the ANZ bank, and secured by mortgage. Property A became the parties' family home and the registered office of Company C.
83Both parties did some work on or to Property A, with a view to improving the overall presentation of the property and making it a more comfortable place for the family to live. It seems that the parties' efforts did not add significantly to the value of the property.
Move to Coastal Town A
84During 1995, Company B obtained work in [Coastal Town E] and the husband moved to Coastal Town A for four or five months to undertake the work. Thereafter more work was obtained in Coastal Town A and, as a result, the parties decided to relocate there on "a semi-permanent basis".
85During the family’s sojourn in Coastal Town A, Property A was leased to tenants. The rental income was applied directly towards the repayment of the mortgage secured against Property A.
86Upon moving to Coastal Town A, the family lived in a self-contained unit on a property owned by the wife's uncle or by an entity associated with him. They lived rent-free for approximately 6 months. Thereafter, they began paying rent at the rate of $100 per week. They moved to other rental accommodation in Coastal Town A approximately 3 months later.
87In May 1996, the parties purchased a vacant block of land [Property E] [Coastal Town B] for $65,000. Because the block was located in a new estate, it had already been levelled and was ready for construction. The parties intended to develop the block and some minor, preliminary work was done in that regard.
88In 1996, the husband inherited $10,000 from his grandmother.
89In June 1997, the parties sold Property A for just under $108,000 or perhaps a little more. The net proceeds of sale (after the payment of selling costs and the discharge of the mortgage) were used to repay the business overdraft. The balance of the purchase price – amounting to approximately $4000 – was retained by the parties.
90At or about the same time, the parties caused Company C to purchase a vacant block of land in [Coastal Town A], [Property B]. The purchase price was $50,000. The purchase of Property B was partly funded from the moneys that the husband had received in the previous year by way of inheritance from his grandmother.
91Thereafter, the parties began constructing a two-storey home, lap pool and workshop on Property B. They also constructed a shed, which contained a self‑contained unit and an office. This enabled the parties to run the business from Property B and, at the same time, to supervise the ongoing construction of the house and workshop. The parties moved in to the "shed" in 1998. The lap pool was completed in 1998. Construction of the house was completed in late 1999.
92The parties contributed equally or approximately equally to the design, approval and construction of the buildings or improvements on Property B. The wife approached her uncle and requested the use of his building licence and his guidance in relation to the construction.
93It appears that the wife was primarily responsible for supervising and coordinating contractors working on Property B. The wife was involved in the day-to-day organisation and management of tradespeople and materials associated with the construction. The husband, however, was also involved in this work. At the same time, the wife continued to have primary responsibility for the care and supervision of the children, and for homemaking and housekeeping tasks. She also attended to the administrative side of Company B.
94Additionally, the wife undertook some physical labour around the Property B and for the business. For example, she was involved in trenching for the installation of underground cables, laying computer and telephone cabling, installing television connections and assembling ceiling fans and other electrical fittings.
95Both parties worked hard to ensure that the construction work on Property B could proceed successfully, efficiently and at an acceptable cost to the parties. Neither party was able to devote all of his or her time to the tasks associated with the construction work – given that the husband had commitments associated with the business and the wife was either assisting with the business or primarily responsible for the care and supervision of the children. Both of them did the best they could in the circumstances. As I have explained above, the Court is not involved in a strict accounting exercise; still less is it involved in a strict quantity surveying exercise.
96While construction of the Property B was under way, the business secured a lucrative fit out contract for a Resort in Coastal Town A. The wife worked in the business throughout the duration of this contract and was frequently present on site.
97In March 1999, the parties sold Property E property for $79,000. The net proceeds of sale were applied towards the completion of the construction works on Property B.
98Both parties continued to work hard for the benefit of the family. The husband was primarily responsible for the conduct of the business, while the wife was primarily responsible for caring for and supervising the children and for homemaking tasks. At times their roles overlapped.
Company C
99In October 2001, the wife ceased to be a director of Company A, and the husband became the sole director and shareholder of the company. He then caused the company to change its name to [Company D]. Company D is the corporate trustee of the [D’s Trust]. The changes occurred following consultation with financial advisers and accountants. On their advice, the parties decided Company D would be used as a trading company in which no assets of any significance would be held. Company C was to hold the parties' assets as trustee for the [Brosnan Family Trust], with the husband as the Appointor.
100Both parties were involved in the discussions with the relevant financial advisers and accountants. The parties were advised to separate their business assets from their personal assets in order to protect the family's financial security.
101In or about early 2002, the business began tendering for work in other locations. It was successful in securing two contracts in [Coastal Town B]. In order to oversee the work being done in that location, the husband relocated to Coastal Town B. The wife remained in Coastal Town A where she was responsible for aspects of the work done by the business in that area. This responsibility placed the wife under considerable pressure.
102These demands placed upon the wife by the business led to an arrangement being reached that the children would temporarily be cared for by others. As a result, the children went to stay with the husband's parents in [NSW]. They then stayed with the husband in Coastal Town B for an extended period, which the husband recalls as being approximately 8 months. The children attended school in Coastal Town B.
103During this time the wife worked hard in the business, often travelling to remote locations. She spent a considerable amount of time in Coastal Town E , and travelling between Coastal Town A and Coastal Town E. Among other tasks, she worked on site – where she was regularly seen by architects, electrical engineers and the building contractors. She was regarded as being the Company B representative and site supervisor. In addition to her management and supervisory responsibilities, she continued to do the administrative work associated with the business.
104It is the husband’s case that the wife has exaggerated her role in the business. In my opinion, it is fair to say that both parties were involved in the management and conduct of Company B – but it is likely that the husband's role in this regard was of much greater significance than that of the wife.
105The wife travelled to Coastal Town B to spend time with the husband and the children whenever she had the opportunity, and relocated there after the business's contractual obligations in Coastal Town A were complete.
106Upon relocating to Coastal Town B, the wife arranged for Property B to be leased to tenants for $600 per week or thereabouts. The rental income was applied directly towards the ongoing mortgage repayments associated with the property.
107In July 2002, the husband resigned as a director of Company C, and the wife became the sole director of the company. The husband's resignation from Company C occurred as a result of advice received from accountants and financial advisers. The purpose, it seems, was (once again) to quarantine the business from the parties' personal assets.
108In the same month, the wife and Child B were involved in a car accident as the wife was driving from Coastal Town B to Coastal Town C (where the business had a contract to complete). The wife was towing a caravan. The car and caravan rolled over and caught fire. Although the wife and Child B were unhurt, they were very shaken and distressed.
109After the accident, the wife and the children stayed with the wife's brother‑in‑law for approximately two months. He supported them emotionally, physically and financially during that period. It seems that the wife regarded the parties as having effectively separated at that time.
Move to Property C
110While she was staying with her brother-in-law, the wife inspected the property at Property C. A decision was made to purchase it. It was agreed that the mortgage on the Property B would be increased to enable the purchase of Property C.
111Property C was purchased in September 2002 in the wife's sole name. The purchase price of $455,000 was paid using a $364,000 mortgage secured against Property C, an extension of the mortgage secured against Property B and funds advanced by the business overdraft facility, together with $7000 obtained by the wife as a First Homeowner Grant.
112In approximately December 2002, the parties were paid around $33,000, being the proceeds of an insurance claim arising out of the motor vehicle accident in which the wife and Child B had been involved. The wife used these funds to contribute towards the purchase price of Property C.
113Approximately 2 weeks after the wife and the children moved into Property C, the parties "reconciled", and the husband also moved into the property.
114Both parties continued to work actively in the business, which appears to have been successful. The wife worked full-time hours on some of the projects in which the business was involved. The husband also worked hard, including spending four to six months away from home during 2004/5.
Property D
115In October 2004, Property B was sold for $792,000. It would appear that the proceeds of sale were applied as follows:
a)to discharge the mortgage secured against the property;
b)in payment of approximately $500,000 towards the purchase of Property D;
c)to pay for a family holiday; and
d)to reduce credit card liabilities and other debts.
116Property D was purchased for $830,000 in October or November 2004. The purchaser was Company C as trustee for the [True Family Trust]. The property comprised a block of land in the [Coastal Town D Marina] development.
117The True Family Trust was established at the end of November 2004. The wife was the appointor of the trust.
118The purchase price for Property D was met in the following manner:
a)a deposit of $20,000 was paid from the electrical business in very early November 2004;
b)approximately $500,000 was utilised from the sale of Property B; and
c)approximately $350,000 was borrowed from the ANZ bank, and secured by a mortgage over Property D.
119On 22 November 2004, the husband registered the business name [Company D].
120The purchase of Property D came with a covenant that required the property to be developed within three years of purchase. In the event that practical completion of the development had not been achieved within that three-year period, Property D was to revert to the developer for the purchase price – less the expenses of purchase (including stamp duty). The wife was keen to develop the property; the husband less so.
Separation
121The husband's mental health deteriorated towards the end of 2005, and he ceased working in September 2005 due to a depressive disorder. He remained unemployed until the end of 2006.
122In November 2005, the wife left Property C with the children following a violent and aggressive outburst by the husband. They went to stay with family members in [Country Town A]. They then relocated to a hotel, where they remained for approximately three weeks. Thereafter, they relocated to rental accommodation, where they remained for approximately 3 months.
123The wife had minimal contact with the husband during this period, and did not tell him where she and the children were living. She continued to have some involvement with the business, however, during this three or four month period.
124In February 2006, the husband commenced treatment with Dr [M], a psychiatrist at Town C Clinic.
125The husband had first sought treatment for depression in 2001. Dr M was the second psychiatrist to whom he had been referred.
Events immediately after separation
126In December 2005, an application was made to increase the amount owing pursuant to the mortgage secured against Property C by approximately $60,000. The application was granted, the effect of which was to increase the amount secured by the mortgage from approximately $350,000 to approximately $410,000. The purpose of the borrowing was to assist with renovations to Property C and to add a lap pool to the property.
127The amount of $60,000 was deposited into an account in the name of Company D as trustee for the [B’s Family Trust], trading as Company B. The moneys, or at least some of them, were then used by the wife to pay school fees and other debts. At the time the wife used the funds, she did not know how they had been obtained.
128It seems that none or almost none of the $60,000 was used to add a lap pool to Property C. Although work had commenced on a pool prior to separation, it remained incomplete even after the $60,000 was obtained.
129Around the same time, the husband sold a speedboat for $32,000. The proceeds of sale were dealt with as follows:
a)$9000 was paid to each of the Company D’s bank account and the Company C account (totalling $18,000); and
b)$14,000 was deposited into the husband's ANZ Visa personal credit card account.
130The husband also disposed of a scissor lift and a portable site office. In addition, he arranged for a "For Sale" sign to be erected at Property D. The telephone numbers on the "For Sale" sign directed potential purchasers to the husband.
131In February 2006, Child A and Child B commenced at [School A] and [School B] respectively. The children's attendance at the schools had been discussed and agreed between the parties in 2005.
132The parties agreed in or about February 2006 that the wife and the children would move back into Property C and that the husband would move out. It appears that the husband was due to move out on 4 March 2006, but was not ready on that day. He asked for a further day. The wife and children moved back in to Property C on 5 March 2006. The husband arrived later in the day and a disagreement ensued. The wife then applied for a Violence Restraining Order ("VRO") against the husband in order to protect herself and the children. The husband was served with the VRO, and escorted from Property C, on 9 March 2006.
133Property C was broken into on 30 March 2006. The wife's personal jewellery was taken, together with the husband's and Child A’s jewellery. Golf clubs, a surfboard, business paperwork and games belonging to the children were also taken. On the following day, the husband withdrew $6750 from the Company C bank account and deposited the funds into the Company D bank account (to which the wife had no access).
134At the same time Company B (which had been conducted by Company D as trustee for the B's Family Trust) was deregistered. The Company D bank account was closed on 3 April 2006.
The husband travels
135In April or May 2006, the wife made efforts to commence negotiations with the husband in relation to property issues. The husband did not respond positively to the wife's efforts. It appears that he had chosen to put his head in the sand (as it were).
136In May 2006, the wife sold a 2003 [Mitsubishi Pajero] motor vehicle (which was registered in the name of Company C). The sale price was $43,500. It would appear that the proceeds of sale were used to pay debts and provide deposit on a [Holden Malibu] motor vehicle. In the same month, the husband travelled to [Sydney] and [Fiji]. He continued travelling within Australia in June, and in August and September 2006. It seems clear that the husband had decided to cease work and to remove himself from the running of the business.
137While the husband was effectively on holiday, the wife and children remained living in Property C. The wife found herself under financial pressure.
138In early September 2006, the wife sold a 2002 [Holden Ute] motor vehicle registered in her name. The sale price was $20,000, which was deposited into the Company C bank account. The proceeds were used to pay debts and to support herself and the children.
139As indicated above, the wife commenced proceedings in this Court on 8 September 2006.
Orders of 13 December 2006
140On 13 December 2006, orders were made to the following effect:
a)The wife was permitted to refinance the mortgage secured against Property D, and to increase the relevant borrowings to $500,000.
b)From the additional moneys borrowed, the wife was to pay –
i)arrears of the children's (2006) school fees;
ii)outstanding water and Council rates for Property D and Property C;
iii)land tax;
iv)$10,000 to her then solicitors on account of her fees;
v)$10,000 to the husband's then solicitors on account of their fees;
vi)$13,000 to herself;
vii)$20,000 to the husband;
viii)a maximum of $6000 for anticipated dental work for the children;
ix)a maximum of $23,000 to School A and School B (relating to the 2007 school fees); and
x)an unidentified amount in respect of a pool fence at Property C.
141Other orders were made on 13 December 2006, but they are not presently relevant.
142The additional moneys borrowed by the wife as a result of the refinancing of Property D amounted to approximately $125,000. There was dispute between the parties as to the manner in which the wife dealt with the funds she had borrowed.
Company E
143In December 2006, the husband recommenced doing electrical work – through [W Pty Ltd] trading as Company E. In February 2007, the company purchased a 2007 [Holden Ute] for $45,000.
144On 17 May 2007, the husband spent $14,673 on household goods. The purchase was paid for using an HSBC credit card in the name of [Mr P].
145On 28 June 2007, W Pty Ltd purchased a 2007 [Mitsubishi Lancer] for $17,303.
146In January 2008, the husband fell and suffered a herniated disc (which placed pressure on a nerve in his spine). The husband underwent surgery on an urgent basis. The surgery cost approximately $10,000. According to the husband, these moneys were borrowed from his sister, [Ms G].
Sale of Property D
147As a result of inquiries made by the wife, negotiations were entered into with the owners of properties abutting Property D. They agreed to purchase Property D from Company C for $1,410,000. The arrangement involved the payment of $10,000 upon the signing of the sale agreement, $100,000 at a later stage and $1,300,000 by not later than 31 December 2010.
148In accordance with the agreement, $10,000 was paid to Company C on 31 May 2007. The second instalment of $100,000 was paid to Company C on 24 August 2007. The wife controlled the account conducted by Company C. Among the payments she caused Company C to make following these two payments was an amount of $15,000 to her then solicitors, [Law Firm A] (paid on 11 September 2007). This was the single largest payment made from those two instalments.
149During this period, the wife had no other personal income, and was not receiving child support from the husband. She was not entitled to Centrelink benefits due to the assets in her name or under her control.
150The final instalment – amounting to $1,300,000 – was paid by the purchasers in mid-January 2008. After discharge of the mortgage secured against Property D (in respect of which some $503,000 was owing), approximately $767,100 was deposited into the Company C bank account.
151Pursuant to the arrangements relating to the sale of Property D, Company C remained liable for the payment of rates, services, land tax and other outgoings relating to Property D until the title was formally transferred to the purchasers. As will become apparent, Property D has yet to be formally transferred to the purchasers and Company C remains liable for the payment of the outgoings.
152On 24 January 2008, orders were made permitting the wife to utilise part of the net proceeds of sale of Property D to discharge the mortgage then encumbering Property C. Approximately $428,500 was utilised for this purpose, leaving Property C encumbrance free.
153Other orders were made on 24 January 2008 permitting each party to receive $5000 from the proceeds of sale of Property D.
154Pursuant to orders made on 1 February 2008, the wife was restrained by injunction from dealing with the remaining funds derived from the sale of Property D. The wife was also restrained from encumbering or selling Property C without the husband's agreement.
155On 27 March 2008, orders were made permitting the parties to receive $10,000 each from the proceeds of sale of Property D. On 14 April 2008, further orders were made permitting the parties to receive an additional $60,000 each from the proceeds of sale of Property D. This payment was deemed to be "partial property settlement and subject to characterisation by the trial judge".
156It follows that between January and April 2008, the parties received a total of $75,000 each from the proceeds of sale of Property D. It should be noted, however, that these were not the only sums received by the parties (or paid for their benefit) pursuant to orders made in these proceedings. On 13 December 2006, orders were made to the effect that –
a)$10,000 be paid to the wife's then solicitors (Law Firm A) on account of her legal fees;
b)$10,000 be paid to the husband's then solicitors ([Law Firm B]) on account of his legal fees;
c)$20,000 be paid to the husband; and
d)$13,000 be paid to the wife.
157It is apparent, therefore, that the husband received – or received the benefit of – preliminary distributions (for want of a better description) totalling $105,000 and that the wife received preliminary distributions totalling $98,000.
158In May 2008, the parties agreed to pay – in advance – the whole of the children's school fees for the remainder of their secondary education. Just over $59,250 was paid to School B, and approximately $50,500 was paid to School A.
Orders sought
159Because the wife did not comply with the orders of 1 October 2013, and because the trial proceeded on an undefended basis, the orders sought by the wife were not particularised. The last set of orders sought by the wife is contained in what was effectively an amended or re-amended initiating application handed up and marked as having been filed in court on 10 February 2012. The proposed orders are complex and confusing. They contain adjustments and add-backs and an unspecified claim for damages. It is impossible to understand the overall effect of the proposed orders, although it seems that "the bottom line" is that the wife sought to retain Property C and to pay nothing, or as little as possible, to the husband.
160The orders sought by the husband are contained in the minute of proposed orders comprising Annexure L to the husband’s trial affidavit. As explained at the trial, however, that the husband sought no more than that the wife retain Property C and pay to him the sum of $279,390. He proposed that each party otherwise retain his or her assets and liabilities. The amount of $279,390 was described as "marital debt in the husband's name". It comprises a number of liabilities incurred during the course of the parties' relationship, together with what would appear to be a modest allowance for interest accruing on those liabilities: see Annexure A to the husband's trial affidavit.
Property settlement – the law
161Until the publication of the recent decisions of the High Court in Stanford v Stanford (2012) 87 ALJR 74 and the Full Court in Bevan & Bevan (2013) 49 Fam LR 387, the Full Court had consistently ruled that the general approach that should be adopted in relation to a property settlement application was settled: see, for example, Pastrikos & Pastrikos (1980) FLC 90-897, Lee Steere & Lee Steere (1985) FLC 91-626; Ferraro & Ferraro (1993) FLC 92-335; Clauson & Clauson (1995) FLC 92-595; and Whitely & Whitely (1996) FLC 92-684. That approach was summarised by the Full Court in Hickey & Hickey & Attorney-General for the Commonwealth of Australia (Intervener) (2003) FLC 93-143, where their Honours said at [39]:
The case law reveals that there is a preferred approach to the determination of an application brought pursuant to the provisions of s.79. That approach involves four inter-related steps. Firstly, the court should make findings as to the identity and value of the property, liabilities and financial resources of the parties at the date of the hearing. Secondly, the court should identify and assess the contributions of the parties within the meaning of ss.79(4)(a), (b) and (c) and determine the contribution based entitlements of the parties expressed as a percentage of the net value of the property of the parties. Thirdly, the court should identify and assess the relevant matters referred to in ss.79(4)(d), (e), (f) and (g), including, because of s.79(4)(e), the matters referred to in section 75(2) so far as they are relevant and determine the adjustment (if any) that should be made to the contribution based entitlements of the parties established at step two. Fourthly, the court should consider the effect of those findings and determination and resolve what order is just and equitable in all the circumstances of the case…
162In Stanford, however, the High Court challenged the validity of the approach described above.
163The High Court emphasised that the provisions of FLA s 79 empower the Court to make orders “altering the interests of the parties to the marriage in [their] property” (although the proceedings are described as relating to “property settlement”). As a result, it is essential to begin consideration of whether it is just and equitable to make a property settlement order “by identifying, according to ordinary common law and equitable principles, the existing legal and equitable interests of the parties in [the property available for distribution between them]”: see Stanford at [37].
164Of particular importance are [35] to [46] of the plurality decision in Stanford (under the heading The operation of section 79), in which it was emphasised that:
... the requirements of [FLA s 79(2) and s 79(4)] are not to be conflated. In every case in which a property settlement order under s 79 is sought, it is necessary to satisfy the court that, in all the circumstances, it is just and equitable to make the order.
165The plurality then spoke of “three fundamental propositions” that adhere to the power to make property orders under FLA s 79:
a)The first "step" (as was previously the case) is to identify “... according to ordinary common law and equitable principles, the existing legal and equitable interests of the parties in the property.” The interest of parties in property cannot be altered unless their existing legal and equitable interests in the property can be identified.
b)Although the court has a very broad power to make orders in relation to property, “it is not a power that is to be exercised according to an unguided judicial discretion”. The judicial discretion must be exercised in accordance with legal principles – including the principles which appear within the [FLA] itself. Further, “because the power to make a property settlement order is not to be exercised in an unprincipled fashion, whether it is ‘just and equitable’ to make the order is not to be answered by assuming that the parties’ rights to or interests in marital property are or should be different from those that then exist”. Put another way (see Stanford at [39]):
270I would add that, even if I am substantially incorrect in my assessment of the parties' respective contributions, or substantially incorrect in my assessment of the appropriate adjustment to be made to take account of the s 75(2) factors, the overall result would still entail the wife having to pay the husband the amount of $279,390 that he seeks. This is so because I would have had to have found that the husband is entitled to less than 35 percent of the property pool before I could have considered awarding him less than the amount that he has claimed.
Orders
271As I have indicated, orders were made on 5 March 2014 to give effect to the conclusions that I had reached and findings that I had made, which conclusions and findings are reflected in these Reasons. The orders made as follows:
272All previous orders (including all outstanding costs orders) be discharged.
273On or before 5 May 2014, the wife must pay to the husband the sum of $279,390 ("the Payment").
274In the event of the wife failing or refusing to pay the Payment to the husband by 5 May 2014, the husband and the wife must forthwith do all such acts and things and sign all such documents as may be required to effect a sale of the real property situated at and known as Property C, being the whole of the land more particularly described in Certificate of Title Volume [X] ("Property C"), and:
a)the listing price for Property C shall be as agreed between the parties and if there is no agreement the listing price shall be as advised by a valuer nominated by the President of the Real Estate Institute of WA;
b)Property C shall be listed for private sale with an estate agent agreed upon between the parties;
c)upon completion of the sale of Property C, the proceeds of sale be applied as follows –
i)firstly, to pay all costs, commissions and expenses of the sale;
ii)secondly, to discharge [the] Mortgage to the Bank of Western Australia Ltd;
iii)thirdly, to discharge any other encumbrance registered against Property C;
iv)fourthly, to pay the Payment to the husband, together with interest thereupon at the rate specified in or in accordance with the Family Law Rules (such interest to be calculated from 5 May 2014 to the date of actual payment); and
v)finally, the balance to the wife.
275Pending the settlement of the sale of Property C pursuant to paragraph 3 above:
a)The wife have the sole use and occupation of Property C, and during that right of occupation the wife pay as and when they shall fall due, be solely liable for and indemnify the husband against the following outgoings relating to Property C:
i)all mortgage payments and all payments due under or in accordance with all encumbrances registered against Property C;
ii) all municipal and water and sewerage rates;
iii)the premiums for the continuation of current insurance policies on the house, and on the contents located in Property C; and
iv)utility expenses including, but not limited to, gas, electricity and telephone usage.
276Pending the payment of the Payment to the husband (together with any interest that may be payable pursuant to paragraph 3(c)(iv) above),and unless the clear and express written consent of the husband has first been obtained, the wife, her servants and agents be restrained by injunction from:
a)disposing of, transferring, assigning, adversely dealing with, charging, encumbering, further encumbering or otherwise dealing in any way whatsoever with Property C (save for the sole purpose of borrowing sufficient funds to enable the Payment to be made);
b)removing from Property C any chattels, fixtures or fittings;
c)doing, causing, authorising or facilitating any act or thing which has or may have the effect of:
i)demolishing, razing, dismantling, breaking, defacing, polluting or damaging Property C (or any part thereof) in any way whatsoever;
ii)diminishing the utility or aesthetic appeal of Property C (or any part thereof) in any way whatsoever; and/or
iii)diminishing the value of Property C (or any part thereof).
277Each party have liberty to apply for procedural or mechanical orders for the purpose of implementing the sale of Property C and the disbursement of the net proceeds of sale in accordance with the provisions of paragraphs 3, 4 and 5 above.
278The husband must forthwith –
a)transfer and assign to the wife all his share and interest (if any) in the following:
i)Company C;
ii)the Brosnan Family Trust; and
iii)the True Family Trust;
b)transfer to the wife, or to her nominee, his shareholding (if any) in Company C;
c)resign any office he may hold in the Company C, Brosnan Family Trust or True Family Trust (including, but not limited to, the office of director of Company C); and
d)transfer and assign to the wife the whole of his share and interest in any loan account or indebtedness –
i)due or owing by him to Company C, Brosnan Family Trust or True Family Trust; or
ii)due or owing to him by Company C, Brosnan Family Trust or True Family Trust.
279The wife indemnify the husband and keep him indemnified from all debts, liabilities and obligations of the husband relating to or arising out of:
a)Property C, including (but not limited to) all land or other property taxes and municipal and water and sewerage rates relating to Property C;
b)Property D, including (but not limited to) all land or other property taxes and municipal and water and sewerage rates relating to the said property;
c)Company C, Brosnan Family Trust or True Family Trust;
d)any loan account or indebtedness due or owing by the husband to Company C, Brosnan Family Trust or True Family Trust; and
e)the creditors of Company C, Brosnan Family Trust or True Family Trust,
and from all actions, proceedings, costs, claims and expenses in respect thereof.
280The wife must forthwith –
a)transfer and assign to the husband all her share and interest (if any) in the following:
i)Company D;
ii)the B’s Family Trust ;
iii)Company E; and
iv)W Pty Ltd ("WPL");
b)transfer to the husband, or to his nominee, her shareholding (if any) in Company D and WPL;
c)resign any office she may hold in the Company D, B’s Family Trust, Company E or WPL (including, but not limited to, the office of director of Company D); and
d)transfer and assign to the husband the whole of her share and interest in any loan account or indebtedness –
i)due or owing by her to Company D, B’s Family Trust, Company E or WPL; or
ii)due or owing to her by Company D, B’s Family Trust, , Company E or WPL.
281The husband indemnify the wife and keep her indemnified from all debts, liabilities and obligations of the wife relating to or arising out of:
a)the liabilities referred to in annexure A to the husband's affidavit sworn 18 December 2014 (totalling $279,389.46), together with any interest thereupon;
b)Company D, B’s Family Trust, Company E or WPL;
c)any loan account or indebtedness due or owing by the husband to Company D, B’s Family Trust, Company E or WPL; and
d)the creditors of Company D, B’s Family Trust, Company E or WPL,
and from all actions, proceedings, costs, claims and expenses in respect thereof.
282The wife retain the following as her sole property:
a)her Holden Malibu motor vehicle;
b)the furniture, chattels and effects presently in her possession;
c)all moneys standing to her credit in any account in any bank, building society or other financial institution; and
d)her superannuation entitlements.
283The husband retain the following as his sole property:
a)any motor vehicle presently in his possession;
b)all real or personal property in the name of the husband's sister, Ms G, but beneficially owned (either wholly or in part) by the husband;
c)all real or personal property in the name of the husband's wife, [Ms Brosnan], but beneficially owned (either wholly or in part) by the husband;
d)the furniture, chattels and effects presently in his possession;
e)all moneys standing to his credit in any account in any bank, building society or other financial institution; and
f)his superannuation entitlements.
284Unless otherwise specified in these orders and except for the purposes of enforcing the payment of any moneys 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) 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.
285Each party pay his/her own costs of and incidental to these proceedings.
286All extant applications, including all child support applications, otherwise be dismissed.
I certify that the preceding [286] paragraphs are a true copy of the reasons for
judgment delivered by this Honourable Court
Associate
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