Haines & Rader (No 4)
[2022] FedCFamC1F 1008
Federal Circuit and Family Court of Australia
(DIVISION 1)
Haines & Rader (No 4) [2022] FedCFamC1F 1008
File number: SYC 1641 of 2019 Judgment of: BRASCH J Date of judgment: 21 December 2022 Catchwords: FAMILY LAW - PROPERTY – Undefended hearing – How to treat unchallenged evidence of wife and untestable evidence of husband - Where deliberate non-disclosure - Where failure to disclose impacts on the Balance Sheet – Where failure to disclose impacts on assessment of s 75(2) factors – Where husband seeks 104 per cent of the pool – Where wife seeks 65 per cent of the pool - Adjustment made
FAMILY LAW - CHILD SUPPORT – Where husband seeks child support departure order – Where quantum sought not explained - Where Child Support Assessment not in evidence – Where Child Support Registrar not served as required by Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) rr 1.13(1)(a), (4)(c) - Application dismissed
FAMILY LAW - STAY - Where husband again applies to stay proceedings pending the outcome of other matters in a state court – Where Rader & Rader [2022] FedCFamC1F 375 followed - Application dismissed
FAMILY LAW - COSTS – Whether the husband, wife or both ought meet the costs of third parties complying with subpoenaes issued by husband – Husband to meet costs
Legislation: Child Support (Assessment) Act1989 ss 116(1), 117(2)
Evidence Act 1995 (Cth) ss 50, 55, 140
Family Law Act 1975 (Cth) ss 75 (2)(a)-(q), 79(1), 79(2), 79(4), 106A
Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) rr 1.13(1)(a), 1.13(4)(c), 3.10(1)(b), 10.26, 10.27, 15.15, 15.19
Cases cited: Allesch v Maunz(2000) 203 CLR 172; [2000] HCA 40
Babett & Falconer (2015) FLC 98-067
Baranski & Baranski (2012) 259 FLR 122; [2012] FamCAFC 18
Beckert & Beckert (2021) 64 Fam LR 218; [2021] FedCFamC1A 40
Benson v Drury (2020) 62 Fam LR 1; [2020] FamCAFC 303
Bevan v Bevan(2013) FLC 93-545; [2013] FamCAFC 116
Biltoft and Biltoft (1995) FLC 92-614
Black and Kellner (1992) FLC 92-287; [1992] FamCA 2
Blair v Curran (1939) 62 CLR 464; [1939] HCA 23
Britt & Britt (2017) FLC 93-764; [2017] FamCAFC 27
C & C [1998] FamCA 143
NHC & RCH (2004) FLC 93–204; [2004] FamCA 633
Dickons & Dickons (2012) 50 Fam LR 244; [2012] FamCAFC 154
Dovgan & Dovgan [2021] FamCA 306
Efthimiadis & Efthimiadis(1993) FLC 92-361
Fielding and Nichol [2014] FCWA 77
G and G (2000) FLC 93-043; [2000] FamCA 1075
Harris v Caladine(1991) 172 CLR 84; [1991] HCA 9
Haines & Rader (No 2) [2022] FedCFamC1F 685
Hickey & Hickey & Attorney-General for the Commonwealth of Australia (Intervener) (2003) FLC 93-143; [2003] FamCA 395
Housing Commission of New South Wales v Tatmar Pastoral Co Pty Ltd and Penrith Pastoral Co Pty Ltd [1983] 3 NSWLR 378
Jabour & Jabour (2019) FLC 93-898; [2019] FamCAFC 78
Jackson v Goldsmith (1958) 81 CLR 446; [1950] ALR 559
Kennon v Kennon (1997) FLC 92-757
Kowaliw & Kowaliw (1981) FLC 91-092
Kowalski and Kowalski (1993) FLC 92-342
Maine & Maine (2016) 56 Fam LR 500; [2016] FamCAFC 270
Marsh v Marsh (1994) FLC 92-443
Mayhew & Fairweather (2022) 64 Fam LR 633; [2022] FedCFamC1A 53
Mayne v Mayne (2011) 46 Fam LR 197; [2011] FamCAFC 192
AJO & GRO (2005) FLC 93-218;
Oriolo and Oriolo (1985) FLC 91-653; [1985] FamCA 54
Perrin & Perrin (No 2) [2018] FamCAFC 122
Rader & Rader [2022] FedCFamC1F 375
S & S [2005] FamCA 1304
Scott & Scott (1994) FLC 92-477
Stanford v Stanford(2012) 247 CLR 108; [2012] HCA 52
Stay v Stay(1997) FLC 92-751
Suiker and Suiker (1993) FLC 92-436; [1993] FamCA 141
Townsend & Townsend (1995) FLC 92-569
Trevi & Trevi (2018) FLC 93-858; [2018] FamCAFC 173
Trustee for the Bankrupt Estate of N Lasic & Lasic (2009) FLC 93-402; [2009] FamCAFC 64
W v W (1997) FLC 92-723
Weir and Weir (1993) FLC 92-338; [1992] FamCA 69
Whisprun Pty Ltd v Dixon (2003) 200 ALR 447; [2003] HCA 4
Division: Division 1 First Instance Number of paragraphs: 305 Date of last submissions: 23 September 2022 Date of hearing: 6 September 2022 Place: Sydney Counsel for the Applicant: Mr Richards Solicitor for the Applicant: Dettmann Phair Lawyers The Respondent: Litigant in person (did not participate) Solicitor for the Respondent: Swiftly Legal (given leave to withdraw) ORDERS
SYC1641 of 2019 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MS HAINES
Applicant
AND: MR RADER
Respondent
order made by:
BRASCH J
DATE OF ORDER:
21 DECEMBER 2022
THE COURT ORDERS THAT:
Property Orders
1.Within 28 days from the date of these Orders the following shall occur:
1.1.The husband must vacate the Suburb J property, being the property at N Street, Suburb J NSW, leaving the property in good order and condition and giving all keys and access devices to the appointed agent as soon as the husband vacates the property and the agent is appointed pursuant to these Orders;
1.2.The Suburb J property be listed for sale by private treaty with such real estate agent as the parties may agree (“the appointed agent”).
2.In the event the parties cannot agree on the real estate agent:
2.1.The wife will provide a list of three names of real estate agents in, or near, Suburb J to the husband (“list of agents”) within seven days of the non-agreement becoming apparent;
2.2.Within seven days thereafter the husband will choose one agent from the list of agents and provide his selection to the wife (via her solicitor) in writing;
2.3.If the husband fails to provide his selection to the wife (via her solicitor) in writing within seven days, then the wife is at liberty to choose one agent from the list of agents (“the appointed agent”) and the need for husband’s signature on such appointment documents is dispensed with.
3.That within seven days of nominating the appointed agent, the parties will agree in writing on a list price for the sale of the Suburb J property, and in the absence of written agreement:
3.1.Within seven days of the non-agreement becoming apparent, the list price will be determined by the appointed agent (“the list price”) and the property be listed for sale;
3.2.If the Suburb J property is not sold by private treaty within five weeks of the listing, then the Suburb J property is to be offered for sale by public auction (“the first auction”) through a licensed public auctioneer as organised by the appointed agent ("the Auctioneer"); and
3.3.The reserve price for the first auction of the Suburb J property is to be the list price or such other price as is agreed between the parties (“the reserve price”) and failing agreement, at such price as is determined by the Auctioneer.
4.The parties:
4.1.Have authority to conduct the sale and to receive and disburse sale monies as required by these orders;
4.2.Are ordered to jointly instruct solicitors to act on their behalf on the sale and in absence of agreement:
(i)Within seven days of the non-agreement becoming apparent, the wife will provide a list of three names of conveyancing solicitors in, or near, Suburb J to the Husband (“list of solicitors”);
(ii)Within seven days thereafter the husband will and provide his selection to the wife (via her solicitor) in writing;
(iii)If the husband fails to provide his selection to the wife (via her solicitor) in writing within seven days, then the wife can choose one solicitor from the list of solicitors ("the appointed solicitor") to act on the sale of the Suburb J property on behalf of the parties and the need for husband’s signature on such appointment documents is dispensed with.
4.3.The parties shall have authority to approach the appointed agent and to make any necessary arrangements for the sale of the Suburb J property.
5.In the event the Suburb J property does not reach the reserve price at the first auction, and the parties are unable, within seven days of the date of the first auction to agree as to the sale of the Suburb J property by private treaty at a reduced price, then:
5.1.The Suburb J property will be listed for sale by way of public auction (“the second auction”);
5.2.The terms and conditions set out herein in relation to the first public auction shall apply mutatis mutandis to the second auction;
5.3.The second auction shall not take place earlier than eight weeks after the first auction;
5.4.At the second auction the parties shall, if the reserve is not reached, negotiate with the highest bidder and sell the Suburb J property.
6.That in relation to the sale of the Suburb J property, whether by private treaty or public auction, save as otherwise provided in these orders, each party is ordered to:
6.1.Execute any documents necessary to effect the conduct and completion of the sale;
6.2.Co-operate in all reasonable ways with the appointed agent, the appointed solicitor and prospective purchasers in relation to the sale including making available the key as required by Order 1.1, allowing for inspection of the Suburb J property at all reasonable times requested by the appointed agent and ensuring that the Suburb J property is in a neat and clean condition at the time of inspection by prospective purchasers;
6.3.If auction/s are required by these orders, attend the auctions of the Suburb J property in person;
6.4.In the event that either party is unable or unwilling to attend the auction/s of the Suburb J property, then that party is ordered to ensure that they are represented at the auction by an attorney appointed under a Power of Attorney authorised to do all things they may otherwise have done and that the party not attending will remain in direct communication by telephone (or otherwise) with the attorney present at the auction sale for the whole of the auction sale.
7.Upon the completion of the sale of the Suburb J property pursuant to these Orders or otherwise, the parties by this order authorise the appointed solicitor to cause the proceeds of sale to be paid and distributed in the following manner and priority:
7.1.In payment of fees due to the appointed agent, auctioneer and legal costs and disbursements for the appointed solicitor incurred in relation to the said sale;
7.2.In payment of all monies owing in relation to the Suburb J mortgage, in the following amounts (as provided by both parties in their balance sheets for the trial of this matter):
(i)O Limited …67 -$254,152
(ii)O Limited …79 -$341,362
(iii)O Limited …92 -$169,212
7.3.In the event the husband has increased the liabilities beyond the amounts in Order 7.2, then he will be solely responsible for those increases, to be paid from his entitlement at Order 7.4(ii);
7.4.The balance of the proceeds of the sale of the Suburb J property be paid as follows:
(i)To the wife an amount so that, taking into account all other assets, liabilities and resources she receives and/or retains by virtue of these Orders, on an overall basis 60 per cent of the parties’ net assets and liabilities; and
(ii)The husband to receive the balance, less:
A.payment of $2,000 to S Pty Ltd;
B.payment of $10,522 to Organisation R;
C.any increase in the O Limited indebtedness beyond that set out in Order 7.2 above; and
D.the wife’s costs of and incidental to the application to set aside the 5 and 6 September 2022 Orders in the sum of $5,184.40.
and the appointed solicitor is authorised by this order to liaise with the officers of those three entities and the solicitors of the wife to arrange for those payments to paid directly to them.
Child Support Departure Orders
8.That the respondent’s application for child support departure orders is dismissed.
Stay
9.The husband’s application to stay the operation of these orders pending the outcome of the District Court proceedings is dismissed.
Signing and Interpretation
10.Save as otherwise provided in these orders, in the event that either party refuses or neglects to comply with the provisions of these Orders then the Registrar of the Court exercising competent jurisdiction shall be appointed pursuant to s 106A(1) of the Family Law Act 1975 (Cth) to execute all deeds and documents in the name of the husband and/or the wife and do all acts and things necessary to give validity and operation to the said Orders.
11.The parties have liberty to re-list the proceedings on matters of interpretation or implementation of these Orders, on the giving of seven (7) days’ notice to the other, by email to associate (via …@...), copying the other party.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Haines & Rader has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
BRASCH J:
Introduction
The property dispute between the husband and wife has been in the court since 2019. It has had a long and protracted history of litigation in this Court.
These are property proceedings only. The matter was set down for final hearing on 6 and 7 September 2022. The trial was concluded in one day, with the husband not attending. I say more about that later.
Ms Haines, born 1970 (“the wife”), initiated the proceedings on 15 March 2019 by filing an Initiating Application for Final Orders in the Federal Circuit Court as it was then. Mr Rader, born 1968 (“the husband”) joined issue with the proceedings by filing a Response on 7 April 2019.
The wife and the husband (“the parties”) commenced cohabitation in 2003. The parties married in early 2009.
The wife contended the parties separated on 6 August 2017 and the husband contended the parties physically separated in August 2017. He said that their relationship ended on 21 September 2018 but I do not know what that means. In so far as separation is concerned, I will use the date of physical separation in August 2017; both parties agree on that. Both parties agreed the divorce order was made in March 2020.
The parties have two children; X, born 2005 (“X”), and Y, born 2006 (“Y”) (“the children”).
It is common ground the children have not spent time with the wife since mid-September 2018. Final Orders were made by consent on 15 December 2020 providing that the husband have sole parental responsibility for the children, but was silent on what time the children would spend with the wife. The wife then brought a number of applications for time with the children, however those applications were unsuccessful. On 25 March 2022, orders were made by consent dismissing the wife’s application for time with the children.
The husband’s “application” (i.e. emails) to adjourn the trial
In the lead up to trial, the husband sent emails to the court asking for an adjournment of the trial. Despite being told he needed to make the application in the proper form, an Application in a Proceeding was never filed, nor was an affidavit. Instead, the husband emailed a photo of a RAT stick to the court and an unparticularised, generic note from a telehealth doctor saying the husband was unable to work due to a medical condition. Obviously, this is a trial, not work.
The husband’s solicitor appeared on the first morning of trial (he was still on the record), and confirmed the husband knew that:
(a)the trial was to commence on 6 September 2022;
(b)his Affidavit of evidence in chief, a financial statement and a Case Outline had been filed on the husband’s instructions;
(c)those documents were for use in this trial;
(d)if the husband wanted an adjournment, an Application in a Proceeding with an affidavit was required; and
(e)if he (the husband) filed a Notice of Address for himself, that would have meant the solicitor’s firm was no longer on the record. The context to this was when the husband purported to withdraw his instructions from the solicitor, the timing was such that the solicitor could not comply with r 3.10(1)(a) of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (“the Rules”).
The solicitor also said Mr U of Counsel had been retained for the trial but released at the end of the week before trial. Consequently, pursuant to r 3.10(1)(b) of the Rules, the solicitor was given permission to cease to act, and was excused from further attendance upon the Court. He left the court.
I dismissed the “application” such as it was. Accordingly, these reasons need to be read in conjunction with the reasons I gave on the morning of the first day of trial as to why the “application” to adjourn would be dismissed. My reasons were published as Haines & Rader(No 2) [2022] FedCFamC1F 685. My orders arising out of those reasons were:
THE COURT ORDERS THAT:
1.Insofar as the husband moves the Court, by email, to adjourn the trial, such requests are dismissed.
2.Both the husband and wife will be provided with the transcript of the trial by the Court, and:
(a) Upon it being sent by the Court to the husband’s email address known to the court, the husband has 14 days thereafter to file and serve written submissions to the court; and
(b) Upon the husband providing any such written submissions within that 14 days, the wife has 14 days to file and serve any reply.
THE COURT NOTES THAT:
A. The effect of Order 1 is that the trial will proceed today.
B. In the event the husband does not file any such written submissions within the 14 days, the court intends to move to judgment, when Her Honour Justice Brasch can thereafter.
C. Should the wife file written submissions in reply, then, again, Her Honour will move to judgment, when she can thereafter.
The transcript was provided to the parties on 9 September 2022. The husband did not file submissions. The wife therefore did not need to reply.
How should the matter proceed?
I now turn to the consequence of my decision not to adjourn the matter – whilst I indicated the trial would proceed, the next question is how. That is, ought the hearing proceed on an undefended basis. Relevantly, the Rules provide:
15.15 Party’s attendance
(1) Unless the court otherwise directs, a party and the party’s lawyer (if any) must attend each court event.
(2) ...
15.19 Failure to attend a court event
(1) If a party to a proceeding is absent from a court event (including a first court date), the court may do one or more of the following:
(a) adjourn the court event to a specific date or generally;
(b) order that there is not to be any court event, unless:
(i) a new date for the court event is fixed; or
(ii) any other steps that the court directs are taken;
(c) if the absent party is an applicant—dismiss the application;
(d)if the absent party is a party who has made an interlocutory application—dismiss the interlocutory application;
(e) proceed with the hearing generally or in relation to any claim for relief in the proceeding.
(2) If a party to a proceeding is absent from a court event, the court may also make an order of the kind referred to in subrule 10.27(1) or (2) (orders on default), or any other order, or may give any directions, and specify any consequences for non‑compliance with the order, that the court thinks just.
(Emphasis added)
In turn, rr 10.26 and 10.27 of the Rules provide:
10.26 When a party is in default
…
(2) For the purposes of rule 10.27, a respondent is in default if the respondent fails to:
(a) give an address for service before the time for the respondent to give an address has expired; or
(b) file a response before the time for the respondent to file a response has expired; or
(c) comply with an order of the court in the proceeding; or
(d) file and serve a document required under these Rules; or
(e) produce a document as required by Division 6.2.2; or
(f) do any act required to be done by these Rules; or
(g) defend the proceeding with due diligence; or
(h) prosecute with due diligence any application the respondent has made in the proceeding.
10.27 Orders on default
…
(2) If a respondent is in default, the court may:
(a) order that a step in the proceeding be taken within the time limited in the order; or
(b)give judgment or make any other order against the respondent; or
(c)make an order referred to in paragraph (b) to take effect if the respondent does not take a step ordered by the court in the proceeding in the time limited in the order.
(3) The court may make an order of the kind referred to in subrule (1) or (2), or any other order, or may give any directions, and specify any consequences for non‑compliance with the order, that the court thinks just.
(Emphasis added)
A number of things arise from these provisions – the respondent husband did not attend the trial; it is unanswerable that the husband did not comply with the orders for the valuation requiring him to “comply with any reasonable request of the Single Expert … including providing reasonable access to any property to be valued” (Order 14 of orders dated 25 March 2022; he did not comply with directions for disclosure dated 22 September 2020, 9 August 2021, 25 March 2022 and 3June 2022 (I give reasons for this later on); by failing to attend, the husband failed to defend the proceeding with due diligence. Rules 15.19(2) and 10.27(3) both give me considerable latitude to do what I think is just. Here, I must do justice between both parties – give the husband the opportunity to be heard, but be alert to the position of the wife who was ready to proceed with the trial and keen to have the matter finalised.
In Allesch v Maunz(2000) 203 CLR 172 , Kirby J observed at [38]–[40]:
... Sometimes, through stubbornness, confusion, misunderstanding, fear or other emotions, a party may not take advantage of the opportunity to be heard, although such opportunity is provided. Affording the opportunity is all that the law and principle require.
Decision-makers, including the courts, cannot generally force people to protect their own rights, to adduce evidence or other materials, to present submissions or to act rationally in their own best interests. This consideration may be especially relevant in relation to the Family Court where emotions, often engendered by the highly personal issues involved, can sometimes cloud rational thought.
Nor are courts obliged to delay proceedings indefinitely because one party, although proved to be on notice of the proceedings, refuses or fails to appear in person or to be represented by a lawyer or some other individual permitted to speak for them who can explain the need for an adjournment. The rights of other parties are commonly involved. In the Family Court, the rights of non-parties (especially children) may be affected. Additionally (as this Court has itself accepted, the rights of the public in the efficient discharge by courts of their functions must be weighed against unreasonable delay in concluding litigation.
For the reasons given on the adjournment application, including the material from the respondent himself (via his emails referred to in that judgment that he was alert to the trial dates), evidence given by his solicitor summarised above, and by the filing of his material for trial (marked “DEFENDED HEARING, 06/09/2022, 10:00 AM, JUSTICE BRASCH”), I am satisfied the husband was well aware of the trial dates. It is trite to say that if his adjournment application was not granted, then the trial would not be adjourned – that is, it would proceed.
The husband has been amply afforded procedural fairness. I am satisfied that the matter ought proceeded before me on anundefendedbasis. If there is any misfortune to the Respondent as a result of that, he is the sole author of that consequence. I cannot “force” the respondent “to protect [his] own rights, to adduce evidence or other materials, to present submissions or to act rationally in [his] own best interests”.
An undefended hearing
In Beckert & Beckert (2021) 64 Fam LR 218 (“Beckert”) at paragraph [55], the Full Court said:
... In an undefendedhearing, the court has the discretion as to whether regard is had to part or all of the evidence of the excluded party (Tate v Tate [2000] FamCA 1040; (2000) FLC 93-047at[95] and [96] ). In this case the primary judge did not proceed as if the husband had not filed a response. Her Honour referred to the husband’s written evidence and outline of submissions at [6] and concluded:
7. The husband abandoned the proceeding after the closing of the wife’s case and whilst he was being cross-examined by counsel for the wife. None of the affidavit evidence of the witnesses upon which he relied can be given any, or any significant, weight. They were not made available by the husband for cross-examination by the other parties. Likewise, the husband did not permit his evidence to be challenged as to property matters and thus such evidence is given little or no weight.
Due to the husband’s non-participation, the wife’s case was not challenged by cross-examination and the husband’s case could not be tested because he did not make himself available for cross-examination. I do however have his affidavit and financial statement although that is in circumstances where he has not presented for cross-examination. The wife urged me to give little weight to his material. I will consider what he said in his affidavit as I deal with the specific controversies between the parties.
However, that is not to say that I must, in a mandatory sense, accept what the wife said. In Scott & Scott (1994) FLC 92-477 (Baker, Lindenmayer & Bell JJ) at 80,729 the Full Court of the Family Court said:
There is, in Australia, no rule of law that a Judge must accept evidence which is unchallenged: Cross on Evidence, 3rd Australian ed. (1986) - footnote 483 para.9.66 at 440; and Ellis v. Wallsend District Hospital (1989) Aust. Torts Reports 80-289 at 69,090; (1989) 17 NSWLR 553 at 588 (per Samuels, JA). However, a number of authorities establish that it may be "wrong, unreasonable or perverse to reject unchallenged evidence" (per Samuels, JA., Ellis v. Wallsend District Hospital, supra at Aust. Torts Reports 69,090; NSWLR 587) and that if an appellate court concludes that it were so, in the particular circumstances of a given case, it may overturn the decision of the primary Judge on the basis of an error of fact, rather than an error of law.
(Emphasis added)
So, whilst I am not mandated to accept the wife’s unchallenged evidence, it may be "wrong, unreasonable or perverse to reject unchallenged evidence". I will consider the wife’s unchallenged evidence as I deal with the specific controversies between the parties.
Failure by parties to provide relevant evidence relating to aspects of their financial affairs does not entitle the Court to dismiss applications or to relieve the Court of the responsibility of applying the provisions of the Act in the light of such findings as can be made (Efthimiadis & Efthimiadis(1993) FLC 92-361 and Stay v Stay(1997) FLC 92-751). I must apply s 79(2) of the Act, which provides that, “[t]he court shall not make an order under this section unless it is satisfied that, in all the circumstances, it is just and equitable to make the order”. See also Harris v Caladine(1991) 172 CLR 84, Stanford v Stanford(2012) 247 CLR 108 (“Stanford”) and Bevan v Bevan(2013) FLC 93-545 (“Bevan”).
I therefore turn to a consideration of the property settlement applications, albeit within the confines of the wife’s unchallenged evidence and the husband’s untestable evidence.
APPLICATION TO SET ASIDE THE ORDERS OF 5 and 6 september 2022
By Application in a Proceeding received by chambers on 9 December 2022, the husband applied to set aside the 5 and 6 September 2022 Orders pursuant to r 10.13 of the Rules. I issued directions for filing material and set the matter down for hearing at 2.15 pm on Monday 19 December 2022. I delivered ex tempore reasons dismissing the Application on 20 December 2022. Those reasons are published as Haines & Rader (No 3) [2022] FedCFamC1F 1007. The husband’s Application was dismissed and with costs.
DOCUMENTS relied upon
The applicant wife relied upon the following documents:
·Affidavit of Ms Haines filed 2 September 2022, but not paragraphs 125, 127, 128, 130-140, and the first sentence of 142;
·Further Amended Initiating Application filed 17 August 2022;
·Financial Statement filed 1 May 2022;
·Affidavit of Mr V filed 2 September 2022;
·Affidavit of Ms Haines Snr filed 2 September 2022;
·Affidavit of Mr Haines Snr filed 2 September 2022;
·Affidavit of Dr CC filed 2 September 2022;
·Affidavit of Mr DD filed 2 September 2022;
·A list of objections, which were not pressed other than as to weight (Exhibit 1);
·An Outline of Case Document filed 2 September 2022, which was superseded by an Amended Outline handed up at trial. In that Amended Outline, the wife abandoned her Kennon claim and did not press two particular parts of that document that related to Kennon (part of paragraph 1 on page 7, and all of paragraph 5 on page 8). The amended Outline was marked Exhibit 2;
·A Tender Bundle of annexures to the wife’s affidavit (Exhibit 3), and specifically Tabs 1, 2, 4-31, 34 and 43. I was told the original Tender Bundle (albeit a larger document then) was provided to the husband’s solicitor prior to trial, when he was still on the record; and
·Further documents tendered throughout the course of proceedings, which became Exhibits 4 to 7. I was told these exhibits came from documents produced under subpoenas and thus available to the husband.
The respondent husband filed the following documents:
·Affidavit of Mr Rader filed 1 September 2022;
·Financial Statement filed 19 August 2022; and
·Outline of Case Document filed 2 September 2022.
·The Outline referred to a “Tender Bundle of Mr Rader”. That Tender Bundle was not put before me. Similarly, the husband’s affidavit referred to annexures, but nothing was annexed to his affidavit that was before me. It may be the Tender Bundle and Annexures were one and the same thing. I do not know. I will do the best I can on the evidence before me.
The standard of proof in this case is the balance of probabilities. Section 140 of the Evidence Act 1995 (Cth) provides:
(1)In a civil proceeding, the court must find the case of a party proved if it is satisfied that the case has been proved on the balance of probabilities.
(2)Without limiting the matters that the court may take into account in deciding whether it is so satisfied, it is to take into account:
(a) the nature of the cause of action or defence; and
(b) the nature of the subject-matter of the proceeding; and
(c) the gravity of the matters alleged.
It is well settled that it is not necessary for a trial judge, in reaching a decision, to refer to every piece of evidence or argument presented during the trial. In Whisprun Pty Ltd v Dixon (2003) 200 ALR 447 at [62], Gleeson CJ, McHugh and Gummow JJ said this:
…A judge's reasons are not required to mention every fact or argument relied on by the losing party as relevant to an issue. Judgments of trial judges would soon become longer than they already are if a judge's failure to mention such facts and arguments would be evidence that he or she had not properly considered the losing party's case.
In Housing Commission of New South Wales v Tatmar Pastoral Co Pty Ltd and Penrith Pastoral Co Pty Ltd [1983] 3 NSWLR 378 at 385–386, Mahoney JA said this:
It is not the duty of the judge to decide every matter which is raised in argument.
…Nor is it necessary for a judge who is exercising a discretionary judgment to detail each factor which he has found to be relevant or irrelevant, or to itemize, for example, in the assessment of damages for tort, each of the factual matters to which he has had regard … nor is a judge required to make an explicit finding on each disputed piece of evidence. it will be sufficient, if the inference as to what is found is appropriately clear…orders sought
The parties’ positions
The wife’s Further Amended Initiating Application was filed on 17 August 2022 and sought the sale of the Suburb J property and a 60 per cent adjustment in her favour. However, in her Amended Outline and Minute (Exhibit 2), the wife sought a 65 per cent adjustment in her favour, the sale of the Suburb J property, and new orders for the collection of artwork. The husband had the opportunity to make written submissions about the wife’s orders and submissions (indeed the entire hearing), but did not. I am thus satisfied that the husband was on notice as to the relief the wife sought.
By reference to his Case Outline, the husband sought a 104 per cent adjustment in the applicant’s favour; the wife is the applicant. The Case Outline was signed by the “lawyer for the respondent” (Husband’s Case Outline filed 2 September 2022, p.5). That 104 per cent adjustment was comprised of 65 per cent to the applicant (the wife) on contributions, and 39 per cent in favour of the applicant (the wife) for s 75(2) factors. Despite the 104 per cent adjustment, the husband also said there should be no adjustment at all. The Suburb J property is in his sole name.
I am prepared to accept that the adjustments were really meant to favour the respondent husband. I say this because in his Case Outline under the justice and equity section, the husband’s primary position was there be no adjustment to the parties’ interest in property because:
by disposing of her interest in [S Pty Ltd] and the [Suburb EE] property, the wife deliberately caused a diminution of the pool assets in the amount of $2,275,000. Accordingly, the husband submits that it is not just and equitable to adjust the parties’ interests in property.
(Husband’s Case Outline filed 2 September, p.5)
The no adjustment case was not explicitly presented as one supported by Stanford. But, I will consider Stanford, as I am required to do, and work on the basis that that was what the husband meant – notwithstanding that on his own case, he proposed the wife receive a 35 per cent adjustment for contributions (the Outline actually said 65 per cent to the applicant wife, but I accept that must be around the wrong way).
The husband’s Outline added a fall-back:
If a splitting order were made, then the husband would have a larger share of the parties’ realisable assets. The husband is charged with the task of securing adequate accommodation for himself and the parties’ children. Accordingly, a splitting order should be made if the court is satisfied that it is just and equitable to alter the parties’ interest in property.
(Husband’s Case Outlined filed 2 September 2022, p.5)
He did not indicate what that splitting order might be.
The husband also sought final orders, in summary, that: subject to him inspecting documents produced on subpoena, the wife’s application be dismissed; the operation of any s 79 orders be stayed pending the two District Court proceedings; and, a child support departure order of $2,650 per child per month, capitalised in the sum of $240,000 and paid within 42 days of making such orders.
ISSUEs
Neither party provided me with a list of issues to resolve. I will therefore do the best I can on the justiciable controversies presented by the competing orders sought, as supported (or not) by their affidavit material and within the confines of the Act.
Three discrete issues are, however, clear:
(a)who should meet the costs of the two third parties in complying with subpoenas issued by the husband. That was the subject of a discreet hearing on 5 September 2022;
(b)ought there be a child support departure order as sought by the husband; and
(c)ought the proceedings be stayed pending the outcome of two District Court proceedings.
I will deal with those discrete issues now.
Costs of subpoena
On 24 August 2022, the husband filed two subpoena directed, one each, to S Pty Ltd and Organisation R. S Pty Ltd is an entity through which the wife’s father conducts his business. Organisation R are its firm of accountants. On 2 September 2022, each entity filed a Notice of Objection.
The subpoena objection came before me at noon on 5 September 2022. For the Reasons given at that time, I excused both entities from further compliance with the subpoena; they had produced what they could. The husband’s legal representative said “I believe that deals with the matter this far” (Transcript 5 September 2022, p.8 line 39). I also determined that each entity ought have their costs, being $10,522 including GST for Organisation R and $2,000 including GST for S Pty Ltd. The orders were:
2. The costs of complying with the subpoena filed by the respondent husband on 24 August 2022 issued to [S Pty Ltd], in the sum of $2000, are to be paid contemporaneously with the distributions of proceeds following delivery of judgement in the substantive matter.
3. The costs of complying with the subpoena filed by the respondent husband on 24 August 2022 issued to [Organisation R], in the sum of $10,552, are to be paid contemporaneously with the distributions of proceeds following delivery of judgement in the substantive matter.
(Orders 2 and 3 of the orders dated 5 September 2022)
The question then is whether the husband, wife, or both should meet those costs.
The wife’s apparent past interest in S Pty Ltd was very much a case run by the husband. He was the one who issued the subpoenas. He deposed to this in his affidavit at paragraph 77:
Because I have not had an opportunity to inspect any materials produced under the subpoenas I filed on 24 August 2022, I may amend my proposed final orders. This is because the documents in question will shed light on the value of [Ms Haines’s] interest in [S Pty Ltd] as at the date of disposition, which I believe has the potential to significantly affect these proceedings
But then, the husband did not attend court to prosecute a case that the wife had had an interest of value in S Pty Ltd. His affidavit material supporting the idea of value to the wife’s interest in the entity is scant and rests on a flimsy evidential basis; for example at paragraph 94, “I believe that [Ms Haines’s] interest in [S Pty Ltd] was worth approximately $2,000,000 based on what she has told me about its value”. The wife denied this.
The husband was also not sure about the $2,000,000 assertion, see for example his paragraph 77:
the documents in question will shed light on the value of [Ms Haines’s] interest in [S Pty Ltd] as at the date of disposition, which I believe has the potential to significantly affect these proceedings
(Emphasis added)
It is also not the case that the wife’s alleged interest in S Pty Ltd was a new issue, arising only on the eve of trial. For example, in his affidavit, the husband deposed at paragraph 95:
Around the same time, I found out about the sale of the [Suburb EE property], I discovered that [Ms Haines] disposed of her shares in [S Pty Ltd] and resigned as a director approximately 7 months after she commenced these proceedings
The husband deposed he became aware of the sale of Suburb EE “around 25 March 2020, or thereabouts” (at paragraph 90). That is, the husband knew of the disposition of shares in S Pty Ltd from at least early 2020.
This was very much the husband’s long-standing issue, which he ultimately did not prosecute at trial or in submissions. In the circumstances, there are justifying circumstances that the husband meet the costs of the third parties in the sums sought, and I will so order. In doing so, I have turned my mind to s 117(1) of the Act along with ss 117(2), (2A), (4), (5) and (6). Relevantly, under s 117(2A)(g) I consider it relevant that the husband meet the costs of the third parties in the pursuit of his long standing issue which he did not ultimately prosecute.
Child Support Departure
The husband sought an order:
That pursuant to section 116 of the Child Support (Assessment) Act 1989, there be a departure from the administrative assessment of child support payable by [Ms Haines] (the Applicant Wife) to [Mr Rader] (the Respondent Husband) for the children [X] born […] 2005 and [Y] born […] 2006 such that the Applicant Wife shall pay periodic child support to the Respondent Husband in the amount of $2,650 per child per month, with such sum to be capitalised in the sum of $240,000 and paid to the husband within 42 days of the making of these Orders.
(Order 4 of Minute of Proposed Orders annexed to Husband’s Case Outline filed 2 September 2022, p.6)
The sum sought of $2,650 per month per child equates to $611.54 per child per week. The husband was not present and did not make submissions to help me understand how he arrived at the amount. In his affidavit he baldly asserted at paragraph 28 that the children’s weekly expenses were $3,460, or $1,730 per child per week. In his Financial Statement he said paid $450 per week per child for their expenses; “Phone, food, travel, clothing, recreation, school” (Husband’s Financial Statement filed 19 August 2022, Part H). I cannot reconcile any of this.
I have no doubt the husband had his reasons for the $2,650 claimed per month per child but they are not apparent to me. I am not prepared to guess at how he arrived at the sums claimed.
Equally, I do not know how he arrived at the $240,000 lump sum and whether, for example, he applied a discount (and if so, in what percentage or amount) for receiving, on his case, the value of cash now as opposed to periodic payments. I also do not know how that lump sum is referable to the older child attaining 18, leaving the younger child the only one relevant to child support.
More so, I have no evidence before me of the Notice of Assessment for the child support departure order, and thus the administrative assessment as is required for such an application (s 116(1) Child Support (Assessment Act 1989)). Nor do I have proof of service on the Registrar as is required by the Rules, r 1.13(1)(a), (4)(c)). Service on the Registrar is mandatory by the terms of the rule.
Both the Assessment and proof of service are required for me to entertain any such departure application. Neither are in evidence before me. True, at paragraph 84 the husband referred to a screenshot of an assessment being attached to his affidavit, but it was not. The lack of foundational, required documents is fatal to the husband’s application to depart from the administrative assessment.
Even if I am wrong on the mandatory nature of the assessment being before me, along with proof of service on the Registrar, I am left to guess what the ground/s of departure may be (s 117(2) Child Support (Assessment) Act 1989). The husband deposed at paragraph 85:
[Ms Haines] was employed throughout our relationship, although she has had frequent changes in position. I believe she has deliberately chosen not to work just prior to filing her most recent Financial Statement to avoid making a financial contribution to the children's expenses and to hold herself out as destitute. I believe that with [Ms Haines's] experience and employment history she could continue to be employed. For these reasons, I do not expect to receive any reasonable amount of support from [Ms Haines] in the future.
(Emphasis added)
Doing the best I can, this seems to be relevant to ground s 117(2)(c) Child Support (Assessment) Act 1989. The husband may have other grounds, but I do not know. I am also left, essentially, guessing what his submissions may have been to engage the “special circumstances of the case” as is required by ss 116(1) and 117(2) of the Child Support (Assessment)Act1989. I will not guess.
Finally, in not making himself available for cross-examination, the wife was unable to test the costs he said were referrable to the children at, for example his paragraphs 27 and 28. How he arrived at those line items in the table at paragraph 28 is unknown. Indeed, the wife made a s 50 Evidence Act objection to that table. All I have is bald assertions as to amounts of money; I therefore will not give the asserted sums any weight.
In those circumstances – that lack of mandatory documents, the husband’s failure to prosecute his claim, the wife’s inability to test it, and the bald assertions upon which his quantum rests – means I cannot be satisfied of the matters required by the relevant child support legislation provisions. I will dismiss his application for the departure order.
The stay
The husband sought the following order:
The operation of any orders made pursuant to s 79 of the Family Law Act shall be stayed until judgment in both of the following proceedings in the District Court of New South Wales: Case No. […] and […].
(Order 2 of Minute of Proposed Orders annexed to Husband’s Case Outline filed 2 September 2022, p.6)
In his affidavit, the husband deposed at paragraph 76:
I am seeking to stay the operation of the final property orders until judgment is awarded in the District Court proceedings commenced by [X] and myself if the court makes orders under s 79 of the Family Law Act. I believe the outcome of those proceedings may offset [Ms Haines’s] property settlement claim to such an extent that selling the [Suburb J Property] will be unnecessary.
Justice Austin in Rader & Rader [2022] FedCFamC1F 375 dismissed a previous application to stay the proceedings made by the husband pending the outcome of the District Court proceedings. His Honour’s reasons at [9] reveal that on 23 March 2022, the husband filed an Application in a Proceeding seeking orders to stay the parties’ property dispute under Pt VIII of the Act pending the completion of the two tortious causes of action pending before the State court.
His Honour reasoned, commencing at [23]:
The husband wants to delay progress of the property settlement proceedings in this Court until the State proceedings are complete, but only due to misconception. The husband – in fact both parties – will derive advantage from the property settlement proceedings being determined before the common law tort proceedings. Finalisation of the proceedings in that sequential order enables the initial undistorted identification of their individual property interests.
Any liability borne by the wife pursuant to judgments entered in the tort proceedings should be met by her from her own property once the parties’ property interests have been adjusted under Pt VII of the Act. Conversely, any liability borne by the husband pursuant to an adverse costs order in the tort proceedings if his tort claim fails should similarly be met by him from his own property, following division of the parties’ property under Pt VII of the Act.
In that way, any liability arising in the tort proceedings will off-set against the judgment debtor’s own property received through these proceedings. If it were otherwise, the parties’ respective inter partes liabilities would comprise an integral part of their overall liabilities, subtracting from the gross value of their assets, and effectively be divided between them in proportional shares as part of the property adjustment process (Marsh v Marsh (1994) FLC 92-443; Kennon v Kennon (1997) FLC 92-757). No authority cited by the husband countermanded the principles distilled in Marsh and Kennon.
The husband’s application to stay the property settlement proceedings in this Court until after the tort proceedings are complete in the State court is dismissed.
The issue has been decided. I will not entertain it again (Blair v Curran (1939) 62 CLR 464 at 531; Jackson v Goldsmith (1958) 81 CLR 446 at 466). The husband’s application to stay these proceedings pending the outcome of the District Court proceedings will (again) be dismissed.
I now turn to the property proceedings.
Legal principles
Part VIII of the Act sets out the legislative provisions relating to property orders that may be sought when parties are or were married. The central provision is s 79 of the Act, which gives the court power to make such orders for alteration of property interests as it considers appropriate; s 79(1).
Section 79(2) of the Act provides that:
The court must not make an order under this section unless it is satisfied that, in all the circumstances, it is just and equitable to make the order.
Section 79(4) of the Act set outs the factors to be taken into account in considering what order, if any, should be made. To that end, the High Court in Stanford at [35] confirmed that before an order is made adjusting the parties’ property, the court is required to make a determination that it is just and equitable to do so. That determination is to be made, however, not as a discrete or preliminary issue but requires the court to consider the matters set out in s 79(4) of the Act.
The relevant s 79(4) factors will be discussed in detail below.
In Stanford the High Court made clear at [37] that it is necessary 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. The Full Court in Bevan at [72]–[73] has held that the decision inStanford has not overruled the four step approach.
That well recognised four-step process (see Hickey & Hickey & Attorney-General for the Commonwealth of Australia (Intervener) (2003) FLC 93-143 at [39]) requires the court to:
(1)Identify and value, the parties' property, liabilities and financial resources at the date of the hearing;
(2)Identify and assess the contributions of the parties as referred to in s 79(4)(a)-(c) of the Act and determine the contribution based entitlements of the parties expressed as a percentage of the net value of the property of the parties, whether examined on a global approach or an asset by asset approach;
(3)Identify and assess the other factors relevant including, the matters referred to in s 79(4)(d)-(g) including s 75(2) of the Act and determine the adjustment (if any) to be made to the entitlements of the parties; and
(4)Consider the effect of the findings arising from the above and resolve what order is just and equitable in all the circumstances of the case.
Stanford also made clear that the requirement pursuant to s 79(2) that it would be just and equitable to make orders altering property should not be conflated with the requirements of s 79(4). The High Court further statedat [39] that the question of whether it is just and equitable to make an order “is not to be answered by assuming that the parties’ rights or interests in marital property are or should be different from those that then exist”, i.e., at the time when the discretion may be exercised.
In relation to the just and equitable requirement, the Full Court in Bevan emphasised that although the pre-condition to making any order for property adjustment is a finding that it is just and equitable to do so in accordance with s 79(2) of the Act, such a finding does not form a threshold issue, nor must the requirements of s 79 be followed in a particular order.
The High Court has held that the very fact of separation may lead to the ready satisfaction of just and equitable requirement: Stanfordat [41]–[42]. In most cases, the court will not need to discuss the s 79(2) issue, because the cases will be conducted on the basis of acceptance by the parties that it is just and equitable to make some form of adjustment: Fielding and Nichol [2014] FCWA 77 at [43].
Here, the wife proposed it would be just and equitable to make some form of adjustment. The husband’s primary position was that there be no adjustment because he contended for an add-back of $2,000,000 which he said might be the value of some shares which the wife had held. Whilst the husband did not explicitly run his case that Stanford supported his primary position for no adjustment, I will give him the benefit of the doubt and consider that is what he meant.
I will start with the Balance Sheet.
The Balance sheet
Establishing the balance sheet is the first step in the recognised four-step process of determining the property adjustment orders that should be made between marital and de facto spouses (see Hickey, supra).
The husband’s Case Outline and affidavit, and the wife’s Amended Outline at Exhibit 2, showed the parties were in dispute about many items:
Ownership Description Applicant wife’s value Respondent husband’s value ASSETS 1 H N Street, Suburb J $4,525,000 $E2,000,000 2 H Overseas Properties NK N/A 3 H Motor Vehicle 1 $60,000 $E20,000 4 W Bank - FF Bank …14 $409 $410 5 W Bank - FF Bank …72 $155 $155 6 W Bank - O Limited …22 NIL NIL 7 W Bank - O Limited …86 NIL NIL 8 W Bank - O Limited …06 NIL NIL 9 H Bank - Westpac …48 NK - 10 H Bank - NAB …26 NK $23,051 11 H Bank - NAB …33 NK $50 12 H Bank - CBA …74 NK - 13 H O Limited - …66 NK $43 14 H GG Bank - …75 NK $31,182 15 H HH Pty Ltd Account NK N/A 16 H Shares NK N/A 17 H JJ Pty Ltd NK NIL 18 H KK Pty Ltd NK NIL 19 H Contents NK E5,000 20 W Contents Nominal Nominal 21 H Costs order in favour of the Husband in District Court proceedings $48,035 $48,035 22 W Costs order in the favour of the Wife in these proceedings in the Family Court N/A $9,037 ADD BACKS 23 W Interest in S Pty Ltd 0 $2,000,000 24 W Sale proceeds of Suburb EE property 0 $275,000 LIABILITIES 25 H Mtge Suburb J Property Loan - O Limited …92
Adopted by the wife in her Exhibit 6.$169,212 $169,212 26 H Mtge Suburb J Property Loan - O Limited …67
Adopted by the wife in her Exhibit 6.$254,152 $254,152 27 H Mtge Suburb J Property Loan - O Limited …79
Adopted by the wife in her Exhibit 6.$341,362 $341,362 28 W Credit Card - Westpac Mastercard …01 $18 $19 29 W Credit Card - Westpac …42 0 $2,919 30 H Credit Card – CBA …74 0 $E15,000 31 H Credit Card – Westpac …48 0 NIL 32 W Personal Loan - Mr Haines Snr $93,224 N/A 33 W Personal Loan - Mr V $177,425 N/A 34 W Costs order in favour of the Husband (not deposed to in husband’s affidavit only in his Outline as a liability) $48,035 $48,035 35 H Costs order in favour of the Wife N/A $9,037 36 H ATO Liabilities 0 $E350,000 37 H LL Pty Ltd Liability (only in husband’s Outline, not in his affidavit) 0 $E450,000 38 H Loan from Ms MM to pay legal fees (not in husband’s Outline, only in affidavit) 0 $100,000 39 H Contingent liability arising from District Court proceedings 0 NK 40 W Contingent liability arising from District Court proceedings 0 NK SUPERANNUATION Member Name of Fund Type of Interest Applicants value Respondents value 41 W Superannuation Fund 1 $128,394 $128,394 42 H Superannuation Fund 2 $586,196 $586,195 43 H Pension 1 NK N/A FINANCIAL RESOURCES Ownership Description Applicants value Respondents value 44 W Ongoing payments from Mr Haines Snr E$335 a week 45 H Pension 2 NK N/A
According to the material, the pool thus ranged from approximately $3.386 million on the husband’s case and $4.98 million on the wife’s. It maybe the wife’s total in her Exhibit 2 had not been recalculated to add in the mortgages, but I do not need to check her maths.
The mortgages
The wife included the current mortgages in her liabilities on her Balance Sheet. Yet, by her Orders, the wife proposed the husband be solely responsible for the increased indebtedness from separation. However, she also submitted that I consider his disclosed post-separation, unilateral draws on the mortgage as a post separation contribution by both parties, and his non-disclosure as a s 75(2)(o) factor. She cannot have it both ways – the benefits of a post-separation contribution claim and a s 75(2)(o) non-disclosure adjustment on one hand, but not the detriment of the liabilities that goes with it on the other. Similarly, if I took the mortgages as at the date of separation, that then begs the question as to the appropriate date for the valuation of the Suburb J property. I will leave the mortgage in the pool, at current value, as both parties contended I do. I will consider post-separation contributions and the claimed non-disclosure later.
The not “knowns”
The husband listed “NKs” – not knowns – for the District Court litigation, which is yet to conclude. I will exclude items 39 and 40; who knows what will happen with those proceedings. There is nothing concrete for me to add into the pool as an asset or liability for this matter. Further, I adopt the reasoning of Austin J, extracted previously, that whatever the outcome in that court, any consequent liability ought be met from the relevant party’s own property after these family law proceedings are resolved; see Kennon, and Marsh.
It will also be apparent that the wife’s column included many “NKs”. Counsel for the wife submitted that the reason for this was the husband’s failure to disclose. For example, the wife deposed she had been agitating for disclosure about the husband’s two business entities since at least 9 September 2019 and again in 24 October 2019 when she wrote asking for:
transaction account statements for the company [JJ Pty Ltd] and disclosure in relation to the company [KK Pty Ltd]. A copy of that letter is at [31]. I did not receive a response to that letter.
(Wife’s affidavit filed 2 September 2022, paragraph 123)
The wife had also asked whether the husband had interests in any accounts in the United Kingdom or other countries where he would be required to file tax returns, but did not receive a response. These are but a couple of examples of a much wider allegation of a failure to disclose made by the wife against the husband which I consider later.
With respect to the HH Pty Ltd entry on the Balance Sheet, the wife deposed at paragraph 57(d) of her affidavit, that at or around separation she saw a HH Pty Ltd statement indicting the husband held $110,000 in this entity. She said there no disclosure by the husband of this and it was never addressed in affidavits or his Case Outline.
Similarly, it seems common ground that the husband used JJ Pty Ltd to run his business up to separation. He then used KK Pty Ltd post separation. The wife complained about the husband’s lack of disclosure about these entities. But again, like the apparent HH Pty Ltd account, that did not help the wife, and ultimately the court, to ascribe a value for these entities.
I cannot divine values for inclusion in the balance sheet. Indeed, the wife did not propose I come up with figures for any of her “NKs” for inclusion in the pool, rather, that I consider the alleged non-disclosure as a s 75(2)(o) factor.
I agree with this approach. The husband left the wife and the Court in the dark about any value which might be ascribed to either of his two business entities, whether he has overseas interests, various bank balances and the HH Pty Ltd share account.
Considering alleged non-disclosure under s75(2)(o) is an entirely orthodox approach, recently confirmed by the Appeal Division in Mayhew & Fairweather (2022) 64 Fam LR 633 at [14]:
The usual way in which defective disclosure is taken into account is either by adding a sum to the pool, reflective of an estimate of the value of undisclosed property …, or under s 75(2)(o) of the Act. …
Items to be removed from the parties’ balance sheet
Costs Orders: I will remove the costs orders from the pool (items 21, 22, 34, 35). I have no evidence that the husband has a costs order in his favour in the District Court and no evidence whether it has been paid, or not, or is being held over to the final determination in that Court. The proper forum for that costs order to be taken up (whatever its status) is in the District Court.
The husband also added a costs order in the wife’s favour from this Court, but the wife said NA. Again, I have no evidence about this apparent order or its satisfaction or not. In any event, if an order has been made in the wife’s favour and it has not been paid by the husband (I do not know either way), then the wife can take enforcement proceedings with respect to same.
I am also alert to the prospect that if I added any costs orders into the pool, then that has the potential to see one party effectively subsidising the order in their favour in the proportion of any property adjustment I make; see Austin J above in Rader and the references to Kennon and Marsh. That would not be appropriate.
ATO Liability and LL Pty Ltd liability: the husband included an ATO liability of “E$350,000” in the balance sheet in his affidavit and his Outline as a line item. That is the height of his evidence for this matter.
The wife said $0 and that there was no evidence to support the alleged ATO liability. I agree. Other than including it in his balance sheet, the husband put on no evidence about this supposed liability, including for example, ATO assessments, how it arose, when it arose, or the sources of income giving rise to the supposed liability. I do not know if the claimed liability is relevant to him personally, his corporate entities or a bit of both. The currency of this Court is evidence; I will not visit a liability on the pool that lacks an evidential basis.
The LL Pty Ltd liability finds its way into the husband’s Outline, and was not deposed to as a balance sheet item in his affidavit. However, he did say this in his affidavit with respect to initial contributions:
business liabilities incurred in relation to my tenure as a partner of [LL Pty Ltd], a former international accounting firm.
The abovementioned liabilities are not included in the balance sheet set out in this affidavit because my creditors have taken no steps to enforce any claims.
(Husband’s affidavit filed 2 September 2022, p.4)
None of this persuades me that I ought include a $450,000 liability in the balance sheet. I have no idea if the purported $450,000 liability is the same or different to the one referred to in the husband’s affidavit. I have no evidence about the $450,000 other than the assertion in the husband’s Outline, which is not, of itself, evidence. The husband has not favoured me with any evidence about how the $450,000 arose, when, why, nor any corroborating documents. One would have thought an entity such as LL Pty Ltd would document such a liability; the husband is no stranger to issuing subpoena. For the same reason as the ATO debt, I will not include this supposed liability in the pool.
Loan from paternal grandmother Ms MM for legal fees: the husband simply includes this in his balance sheet in his affidavit and Outline. That is the height of his evidence. The husband told me nothing about when this apparent loan arose or the terms of any agreement. I do not know if the monies were applied to these proceedings, ADVO proceedings and/or the District Court proceedings. I do not know if Ms MM’s loan is secured in any way, or not.
In contrast, the wife at least put on affidavits from those who, she said, have loaned her money and put the loan agreements into evidence. I do not say that disposes of loan matters in the wife’s favour, but simply make the point about the complete lack of evidence on the husband’s part with respect to this asserted line item. Without establishing an evidential foundation for the apparent loan from Ms MM, it will not be visited upon the pool.
I now consider each disputed item in turn.
Items in dispute
N Street, Suburb J (“Suburb J”): It was the wife’s case that despite the Order of 25 March 2022 for the appointment of a Single Expert from WW Company to value the property, the husband would not let the Single Expert into the property. The March 2022 Order required him to give access. That March Order was then varied on 3 June 2022 to extend the timeframe for the husband to comply. He did not. When the matter came before me for a case management hearing on 22 August 2022, Counsel then for the husband told the Court that the husband would comply with the order and that arrangements were in place for the Single Expert to attend upon the home by the end of that week.
Nevertheless, I made the following Order:
In the event the husband does not allow the Single Expert into the former matrimonial home, at [Suburb J] by close of business Friday 26 August 2022, then the wife is at liberty to file whatever evidence she is able to obtain with respect to the valuation of the [Suburb J] property.
(Order 5 of the orders dated 22 August 2022)
Despite his then Counsel’s assurances, the husband did not comply. I have no affidavit from the Single Expert. Thus, the wife relied upon the 22 August 2022 Order above, and secured a valuation and affidavit from Mr DD, a Certified Professional Valuer.
It was Mr DD’s unchallenged expert opinion that the Suburb J property ought be valued at $4,525,000. The wife adopted this figure in her Amended Outline. The husband’s Balance Sheet said $2,000,000 but the husband gave no basis for this.
I prefer the expert opinion of Mr DD. I do so because whilst he was unable to enter the home due to the husband’s stance, he had:
·Unchallenged expertise;
·NN Company data;
·Floor plans and photos (even if dated);
·Instructions (per the husband’s affidavit filed 2 September 2022 at paragraph 103 as reflected in his letter of instructions at page 6 of the Mr DD affidavit) that the husband spent $40,000 on renovations;
·OO Information Service;
·Registrar General information;
·Relevant planning policies; and
·Comparable sales.
I find the home’s value to be $4,525,000.
Motor Vehicle 1 in the husband’s name: the wife said this vehicle, having been bought for just over $88,000 in 2018 on a redraw from the Suburb J property mortgage is now worth $60,000. The wife’s Exhibit 3 at page 242 confirmed various expenditure of funds redrawn over the Suburb J property, including the Motor Vehicle purchase, which was receipted at page 245. The husband said its value was $20,000.
There is no evidence to support either contention.
However, despite being in her balance sheet, the wife submitted that because the purchase of the vehicle was one of many unilateral drawdowns by the husband from the mortgages secured against the former matrimonial home, I ought not include the Motor Vehicle in the pool, but include the car as part of a much wider s 75(2)(o) consideration, consistent with authorities such as Trevi & Trevi (2018) FLC 93-858 (“Trevi”). However, the wife also submitted that some of these draw downs constituted a post-separation contribution by the wife. It troubles me that if I did all of those things, then I would run the risk of double or triple counting the Motor Vehicle.
The husband included it in his pool.
What I will do is include it in the balance sheet, as the husband contended and at his value as an admission against interest. Later in these reasons, I consider the wife’s submissions that the husband’s disclosed draws on the mortgages (which included the Motor Vehicle) were post-separation contributions by both. She cannot have it both ways. I will include the Motor Vehicle as an asset on the Balance Sheet, but also consider it when I turn to post-separation contributions.
Parties’ bank accounts: the correspondence attached to the wife’s affidavit (Exhibit 3, p.137-292) reveals a bugbear of the wife’s has been the husband’s failure to make disclosure. This would explain her “NK” for the bank accounts in the name of the husband in her Outlines. The husband however adopted the wife’s bank account balances, except for one where she said $409 and he said $410. I will use the wife’s figure for her own account, as she is more likely to know.
I will accept what each party deposed about their own bank account balances, as they are, essentially, admissions against interest. I have no evidence to do anything to the contrary. Accordingly, I find the following bank account values. I have excluded those accounts where both parties agree a zero or not known balance:
For the wife
·FF Bank …74 $409
·FF Bank …72 $155
For the husband
·GG Bank …75 $31,182
·NAB …26 $23,051
·NAB ...33 $50
·O Limited …66 $43
Both parties’ contents: both parties used the figure of $5,000 for the husband’s contents and nominal for the wife. I will adopt that approach.
Wife’s interest in S Pty Ltd. The wife listed this item in the assets part of her balance sheet at ‘Nil’. The husband listed $2,000,000 under the heading of ‘other’ in his Outline, but as an addback in his affidavit. It is clear from his affidavit that he sought the sum be added back. Similarly, in his Outline at paragraph 2 on page 3 he said, “The wife disposed of her interest in [S Pty Ltd] around the time that the parties separated, and the husband contends that her interest should be added back”.
Before I even consider embarking upon a detailed analysis of the legal principles relating to addbacks (for example, Trevi and the authorities cited therein), it is useful to consider the evidence said to support the contention that the value of the add back sought by the husband is $2,000,000.
I will extract again, the height of the husband’s evidence on this matter:
Because I have not had an opportunity to inspect any materials produced under the subpoenas I filed on 24 August 2022, I may amend my proposed final orders. This is because the documents in question will shed light on the value of [Ms Haines’s] interest in [S Pty Ltd] as at the date of disposition, which I believe has the potential to significantly affect these proceedings.
I believe that [Ms Haines’s] interest in [S Pty Ltd] was worth approximately $2,000,000 based on what she has told me about its value. I also recall [Ms Haines] obtaining tens of millions of dollars in borrowed capital from [UU Company], and other credit providers, on behalf of [S Pty Ltd], which she had done in her capacity as a company director.
(Emphasis added)
(Husband’s affidavit filed 2 September 2022, paragraphs 77 and 94)
The first paragraph extracted above demonstrates the husband cannot satisfy me on the balance of probabilities that the value is $2,000,000 – he himself deposed to looking for documents to “shed light” on the value of the wife’s interest. The second paragraph – what the wife apparently said - was not put to her. Under my considerations of the costs of the subpoena, I have set out that this was not a new issue for the husband.
The wife deposed to the S Pty Ltd issue in her affidavit at paragraphs 148 to 150. As to value, benefit or gain, she deposed:
I never received any financial benefit or consideration as a director of [S Pty Ltd] nor did I receive any financial benefit or consideration upon my resignation [as a director]. I previously held E class redeemable preference shares in [S Pty Ltd] at one dollar each on […] 1970.
The last dividends paid on the E class redeemable preference shares in [S Pty Ltd] was on […] 2008 in the sum of $10,000. There was a corporate reconstruction of [S Pty Ltd] that took place on […] 2017 in which all of the redeemable preference shares in the company (B, C, D, E, F, G and H classes) were redeemed at par value and my shares were redeemed on that date for $10.
(Wife’s affidavit filed 2 September 2022, paragraphs 148-150)
In submissions, the wife added that there is simply no evidence to support the $2,000,000 asserted by the husband. I accept that to be so; relevant evidence within the meaning of s 55 of the Evidence Act is lacking. Further, the husband did not prosecute his case on this matter (or anything else). The wife’s evidence is unchallenged and the husband’s claim is untestable.
Given I cannot accept the $2,000,000 contended for by the husband, it thus becomes unnecessary for me to embark on that process of examining the principles with respect to addbacks. Suffice to say, they are the exception, not the rule (Trevi, supra, at [28] and C & C [1998] FamCA 143 at [46]). I will add nothing into the balance sheet for this item. The husband has not persuaded me that I should.
Proceeds from sale of the wife’s Suburb EE property (“Suburb EE”). The husband again listed this item under other in his Outline, but as an addback in his affidavit. I will approach it on the latter basis. He sought the addback of $275,000 being the gross sale price for the property, even though the unchallenged evidence of the wife was that after costs of sale, she received about $264,000 (Wife’s affidavit filed 2 September 2022, paragraph 101 and settlement statement at Annexure 15).
It is common ground that in or about late 2015, the wife bought this property in Tasmania for about $170,000, funded by money from her parents (Husband’s affidavit filed 2 September 2022, paragraph 15). The wife said she received $200,000 and her parents deposed to same. The wife added that she paid stamp duty and legal costs from the balance of the monies that she received from her parents “with the remaining amount being used on joint living expenses” (Wife’s affidavit filed 2 September 2022, paragraph 31). I accept that unchallenged evidence.
The wife then sold the Suburb EE property in late 2019 for $275,000 gross (see Husband’s affidavit filed 2 September 2022, paragraph 15 and wife’s affidavit filed 2 September 2022, paragraph 31 and 101).
The basis for the addback contended for by the husband is found in his Outline, “The [Suburb EE] sale proceeds should be added back because they have been transferred to wife’s parents and/or used to pay her legal costs” (Husband’s Case Outline filed 2 September 2022, p.3). Unfortunately, I did not have the benefit of submissions to help me better understand this. However, the husband did not suggest that a cent of matrimonial monies went into this property – on his own case (and the wife’s) its acquisition was funded from monies, which came from the maternal grandparents. I accept that.
Nevertheless, it is “unduly simplistic” to say the $275,000 in total ought be added back; Trevi, supra, at [28]. Further, adding back is "the exception rather than the rule". As was also said in Trevi at [29]:
the Family Court must take the property of a party to the marriage as it finds it” at trial. An important parallel proposition is that the parties do not "go into a state of suspended economic animation" after separation. Thus, reasonably incurred expenditure does not usually come within accepted categories of addback.
The wife deposed she sold the property at Suburb EE in Tasmania “to pay my living expenses and my legal costs” (Wife’s affidavit filed 2 September 2022, paragraph 71) and that from the sale proceeds she repaid the sum of $102,953 to her father because he had previously paid her legal fees, and another $39,628 “which I paid to PP Lawyers and my Counsel” (Wife’s affidavit filed 2 September 2022, paragraph 92). I have no reason to doubt what she said and accept the funds were applied to repaying her father for his payment of legal fees, to PP Lawyers, her counsel and for living expenses. But again, the source of the funds to purchase the property in the first place, which in turn, on sale, allowed for the payments (and living expenses), were the maternal grandparents. This can be contrasted with the husband’s use of the matrimonial redraw against the former matrimonial home to fund his legal fees (see Wife’s Exhibit 3, p.242 and 247-249), but I will say more about that later.
In the circumstances described by the wife as to its sale, the sale was hardly wanton, reckless or negligent (Trevi at [27], see also AJO & GRO (2005) FLC 93-218 at 79,617, referencing in particular Kowaliw & Kowaliw (1981) FLC 91-092; Townsend & Townsend (1995) FLC 92-569.). The approach promoted by the husband to add back the sale price, in my view, does not accord with authority. These circumstances are not exceptional.
I will however look at what the wife did with the proceeds.
I accept the wife’s unchallenged evidence that she used some of the funds for living expenses. It is not appropriate to add back into the pool as a notional asset what she spent on living expenses; there is nothing exceptional about that. I also accept the wife used some of the proceeds for legal fees and repaying her father for his payment of her legal fees.
It was the wife’s submission that when it came to legal fees, consistent with authorities such as NHC & RCH (2004) FLC 93–204, I would either add in both parties’ legal fees to the pool, or, both parties’ legal fees would be excluded from the pool.
I pause to observe that both parties’ legal fees are not just referable to this Court and these property proceedings. The parties have also had ADVO proceedings and are in the District Court of New South Wales. There have also been proceedings in this Court about the children. I have little, if any, overall breakdown of what was spent where.
It was ultimately submitted for the wife that it would not do justice and equity between the parties to add both parties’ relevant legal fees back to the pool, when I simply could not be satisfied what ought be added back for the husband. To that, I add I also cannot be satisfied what arises for the wife in these property proceedings.
Returning to the wife’s submissions about the husband’s legal fees, I was taken to Exhibit 7, which was a letter dated 22 July 2022, purporting to be a Costs Notice to the husband, along with some O Limited bank statements. That letter said:
Your total costs and disbursements incurred to date are $27,243.
Your estimated costs and disbursements from today until the conclusion of a two-day final hearing are $25,740.
Conversely, the husband’s O Limited statements at Exhibit 7 showed entries on 5 April 2019 for Family Law Fees of $25,000 and on 8 April 2019 Family Law 2 for $25,000 and on 4 April 2019 $15,000 for legals, but I do not know which ones. The two family law payments of $50,000 in April 2019 are greater than what his solicitor said were the client’s total costs and disbursements to date.
Similarly, the statement of account for the husband’s legal fees (described as “property litigation and ADVO”) as at 28 September 2019 (Wife’s Exhibit 3, p.247-249) had yet again different amounts for legal fees and disbursements.
The husband’s Outline said the applicant (wife) ought receive an adjustment of 65 per cent but I have already indicated that he must mean 65 per cent for himself and 35 per cent to the wife.
The husband accepted the wife had a unit at the start of the relationship and that she subsequently contributed $200,000 from the sale of the Suburb PP unit to the Suburb J mortgage. He also accepted that the wife made contributions to the care of the children at least to 2015 on his case. His Outline also referred to the Suburb EE property (but that was a reason why she should not get a property adjustment at all), the apparent £85,000 payment (which I have not accepted), his initial contributions (which I have not accepted), that post-separation he has been completely responsible for all outgoings and the costs of children (which I have not accepted), and had the sole care of the children since late 2018 (which I do accept). I did not have the benefit of submissions where the husband may have developed his contentions.
What I see, particularly when the parties were together, is a couple who contributed as best each could to the various spheres over which contributions are assessed. Looking at all contributions overall and holistically, two matters attract some prominence - the wife’s initial contributions and the husband’s post-separation care and control of the children.
Taking all of those contribution factors into account, and in a holistic way, I assess their contributions to be equal. On a pool of $4,554,754 that means an assessment of their contributions with a money value of $2,277,377 each. For reasons given later, I will order the Suburb J property be sold. If it sells for more or less than the valuation, then each parties’ actual monetary entitlement will vary, but will vary proportionally so.
Section 79(4)(d)
The property order I will make will not affect the earning capacity of either of the parties under s 79(4)(d) of the Act. Neither party suggested otherwise.
Section 79(4)(e), (g)
I will consider s 75(2), which includes references to child support, later in these reasons.
Section 79(4)(f)
I will consider the justice and equity of any order I propose to make later in these reasons.
Is it just and equitable to make a property adjustment?
Having made findings about contributions, I now turn to whether a property order ought be made. As foreshadowed, it was the husband’s primary case that he receive 104 per cent but there be no property adjustment because the wife had disposed of (on his case) a valuable shareholding in the S Pty Ltd enterprise and disposed of the Suburb EE property. I have not made findings that support his position in those regards.
As foreshadowed, whilst the husband did not squarely present his case as one engaging Stanford in the sense that the title to property falls as it falls, I will approach his case on the basis that is what he meant.
Other than his claims about S Pty Ltd and the sale of the Suburb EE property, I unfortunately have not had the benefit of submissions from the husband as to why it would not be just an equitable to make a property adjustment order in the circumstances of this case. The parties had a 14-year relationship producing two children. The husband deposed to the wife making homemaker contributions and applying $200,000 from the sale of her unit at Suburb PP to the Suburb J mortgage. On his Case Outline, he contended the wife ought receive 65 per cent for contributions, or more correctly (inferring error on his part) 35 per cent for contributions.
The High Court’s reasoning in Stanford at [42] is apposite to the current case:
as the result of a choice made by one or both of the parties, the husband and wife are no longer living in a marital relationship. It will be just and equitable to make a property settlement order in such a case because there is not and will not thereafter be the common use of property by the husband and wife. No less importantly, the express and implicit assumptions that underpinned the existing property arrangements have been brought to an end by the voluntary severance of the mutuality of the marital relationship. That is, any express or implicit assumption that the parties may have made to the effect that existing arrangements of marital property interests were sufficient or appropriate during the continuance of their marital relationship is brought to an end with the ending of the marital relationship. And the assumption that any adjustment to those interests could be effected consensually as needed or desired is also brought to an end. Hence it will be just and equitable that the court make a property settlement order. What order, if any, should then be made is determined by applying s 79(4).
This is not an involuntary separation as occurred in Stanford. Here, the parties have voluntarily separated and the common use of property has come to an end. The husband accepted the wife made initial contributions, and when together and I have found she did so in the post-separation period too. It is thus just and equitable to make a property settlement order. In so far as the husband contended otherwise, I reject such contentions.
Section 75(2) Factors
The husband said s 75(2) factors ought favour the applicant (i.e. the wife) by 39 per cent; I accept he meant 39 per cent for himself and nil for the wife. In her Outline, the wife referred to a 10 per cent adjustment in her favour, but in oral submissions said 15 per cent.
Subsection 75(2)(a) – the age and state of health of each of the parties
The husband was born in 1968 and is 54 years of age. The wife was born in 1974 and is 52 years. Little turns on this itself.
The husband says he has a range of health issues I have listed under the Kennon subheading but there is no evidence to support that. In his Outline he referred to Post Traumatic Stress Disorder but there is no evidence to support that claim either. I do not accept that to be so.
Further, the evidence falls short of establishing that the husband’s ability to continue his profession as a consulting professional is compromised by reason of his alleged Post Traumatic Stress Disorder or other health issues.
The wife is in poor mental health and has resumed seeing a psychiatrist, Dr CC, for her mental health issues including alcohol use disorder. I accept what Dr CC opines; he was not challenged.
The parties’ respective health positions favours the wife.
Subsection 75(2)(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
Dr CC deposed “She will struggle to get employment. She will not get a reference from her last job”. I accept his unchallenged evidence. I thus do not accept the husband’s contention that the wife is making herself destitute for child support reasons or for this trial.
The wife receives JobSeeker in the sum of $321 a week and a loan of $125 per week from her father to assist with living expenses. She has negligible funds in bank accounts is housesitting and does not have a motor vehicle.
The wife owes Mr V $177,425 and her father $93,224. Whilst I decline to add these loans into the balance sheet, I do take account the reality that the wife owes these people just over $270,000. I accept these loans exist; the loan agreements are in evidence and both creditors were available for cross-examination. However, for reasons given I have not added them to the matrimonial balance sheet.
The wife also owes child support arrears of almost $32,000 but said in examination in chief that the parties were before the relevant Tribunal about child support disputes. I cannot speculate what that may mean to the arrears.
The wife does not have a motor vehicle. I accept what she said about job applications because that evidence sits comfortably alongside the doctor’s evidence.
The wife submitted at least by reference to 2018 figures that the husband has capacity to generate income in the vicinity of $300,000 per annum. It was also submitted that the husband had made no disclosure about KK Pty Ltd, JJ Pty Ltd or his earnings. The wife was therefore left with the last information she had which was 2018 where the entity turned over $300,000. I accept that.
The husband’s Financial Statement indicated income of $3,026 per week gross. He lists an excess of expenses over income but I have no evidence to explain how he meets this shortfall. He said he pays $150 a week for car insurance which is $7,800 per annum – he says the Motor Vehicle (the only car I have evidence of) is only worth $20,000. That seems to be expensive insurance for a car worth little, but I cannot make that finding. The husband also said he pays $900 per week in mortgage payments, i.e. $46,800 per annum, but I have no evidence that he actually pays that from income, as opposed to, say, redraws on the matrimonial mortgages. In circumstances where nothing the husband said could be tested, and where I have no documentary evidence to support his claims, I put little, if any weight on what he claimed for expenses.
The husband describes himself as self-employed full-time as a consultant. He said the wife has the capacity to earn more than $3,000 per week, but that was not supported by the unchallenged evidence of the wife’s psychiatrist. The husband again referred to the wife’s interest in S Pty Ltd and Suburb EE, but I have already made findings about those two matters.
The husband has $586,195 in superannuation whereas the wife has $128,394.
As for financial resources, the husband said in his Outline that the wife has a financial resource from payments from Mr Haines Snr of $335 per week, but I do not know how that figures was derived and it was not put to the wife. Nothing further was put before me in evidence of this contention. I do not accept what the husband claimed.
Similarly, both parties listed the husband’s “Pension 2” as an item on the balance sheet (see Exhibit 2 and Husband’s Case Outline filed 2 September 2022). The wife listed the resource as “NK” whilst the husband asserted the value to be “N/A”. I cannot consider that as a financial resource absent evidence.
Looking at all of these factors, the husband is in a superior financial position to that of the wife.
Subsection 75 (2)(c) – whether either party has the care or control of a child of the marriage who has not attained the age of 18 years
X is soon 18 years. Y is 17 years next year. Looking to the future, given the children’s ages, little turns on this.
Subsections 75 (2)(d) and (e) – commitments of each of the parties that are necessary to enable the party to support himself or herself, and a child or another person that the party has a duty to maintain; and the responsibilities of either party to support any other person
I have already considered the parties’ respective financial circumstances which then flows on to their commitments to support themselves.
In both his Outline and affidavit, the husband said that whilst X will be 18 years very soon, she will be or will likely to be dependent on him when she attends university (Husband’s Case Outline filed 2 September 2022, p.5 and Husband’s affidavit filed 2 September 2022, paragraphs 109-110). While that may be so, the children are close to attaining their majority.
I have no evidence to suggest either party has a duty to maintain any other person.
Little, if anything, turns on these considerations.
Subsection 75 (2)(f) – the eligibility of either party for a pension, allowance or benefit under any law of the Commonwealth, of a State or Territory or of another country; or 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
The wife is on JobSeeker. The husband is self-employed full time. This just highlights the husband’s position of financial strength vis-a-vis the wife. I will not count this factor again.
Subsection (2)(g) – where the parties have separated or divorced, a standard of living that in all the circumstances is reasonable
No submissions were made under this heading. It is irrelevant.
Subsection (2)(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
Maintenance is not being considered. This is irrelevant.
Subsection (2)(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
The husband baldy asserted that the ATO and LL Pty Ltd were creditors. I have already determined that I do not accept these alleged liabilities. If the husband does in fact have some liability to these (or other) entities, then his failure to make disclosure means he is the architect of the court being unable to consider them.
I have already referred to the wife’s loans owed to her father and partner. I will not count it again under this sub-heading.
Nothing turns on this factor. The husband will have costs orders to meet, but these are not significant in the scheme of the pool. They are also a product of his actions. In the event the husband has increased the indebtedness of the O Limited mortgage since trial then he will be responsible for that. Otherwise that would have the probability of defeating the effect of these orders.
Subsection (2)(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
No submissions were made on this. It is not relevant.
Subsection (2)(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
No submissions were made on this. It is not relevant.
Subsection (2)(l) – the need to protect a party who wishes to continue that party’s role as a parent
This is not relevant. The children are close to their majority.
Subsection (2)(m) – if either party is cohabiting with another person—the financial circumstances relating to the cohabitation
The wife has re-partnered, but her unchallenged evidence is that she and Mr V do not cohabit. Nothing turns on this factor.
Subsection (2)(n) – the terms of any order made or proposed to be made under section 79 in relation to the property of the parties; or vested bankruptcy property in relation to a bankrupt party
Not applicable.
Subsection (2)(naa) – the terms of any order or declaration made, or proposed to be made, under Part VIIIAB in relation to a party to the marriage; or a person who is a party to a de facto relationship with a party to the marriage; or the property of or vested bankruptcy property in relation to a person covered by the categories aforementioned
Not applicable.
Subsection (2)(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
I do not have the assessment before me. I was told by the wife in evidence in chief that the parties are before the relevant Tribunal dealing with a disagreement about child support. That is the proper forum for that dispute.
Given the ages of the children, the wife’s provision of child support into the future is not a factor that looms large.
Subsection (2)(o) – any fact or circumstance which, in the opinion of the court, the justice of the case requires to be taken into account
The wife made three central submissions under this limb:
· The husband’s failure to disclose generally and his specific failure to disclose all his draws against the Suburb J mortgages;
· The husband’s conduct in failing to comply with the Rules and/or Orders; and
· The husband unnecessarily drawing out these proceedings.
Dealing with the last one first, it is correct that the husband has brought many applications and reviews, even as recently as 9 December 2022 when he applied to set aside orders of 5 September 2022 and 6 September 2022. As frustrating as that may have been for the wife, the husband was entitled to do so and the wife entitled to seek costs. He has not been declared vexatious. I will not take that into account.
The first and second are closely intertwined – the failure to disclose, for example, is often a failure to comply with rules and orders. Thus, I will consider non-disclosure as one category and then look at conduct other than non-disclosure as another.
Non-disclosure
It is trite that the integrity of the s 79 process heavily depends upon the absolute duty of parties to meet their obligations of full and frank disclosure of all information relevant to the case, including disclosure of their financial position both as to assets and liabilities (Oriolo and Oriolo (1985) FLC 91-653; Black and Kellner (1992) FLC 92-287; Suiker and Suiker (1993) FLC 92-436 and Weir and Weir (1993) FLC 92-338 (“Weir ”)).
With respect to disclosure, the wife deposed at paragraph 106 and following:
After separation I instructed my solicitors to write to [Mr Rader] about property adjustment and finalising our parenting arrangement. I am informed by my solicitors that [Mr Rader] did not respond to that letter. My solicitors wrote to [Mr Rader] again in July 2018 seeking financial disclosure. [Mr Rader] did not respond to that letter despite further attempts and reminders. My solicitors wrote to [Mr Rader’s] solicitors in February 2019 seeking to exchange financial disclosure documents. On 17 June 2019 my solicitors wrote to [Mr Rader] seeking exchange of financial disclosure. No financial disclosure was received from [Mr Rader] in response to this correspondence. On 3 July 2019 my solicitors wrote to [Mr Rader’s] solicitors again seeking an exchange of financial disclosure and my solicitor received correspondence from [Mr Rader’s] solicitor dated 5 July 2019 indicating that I had no right to the documents set out in the schedule of requested disclosure. A copy of those letters are at [21].
On 31 July 2019 orders were made for each party to comply with their obligation of disclosure within 28 days and on 30 August 2019 my solicitor received correspondence from [Mr Rader’s] solicitor enclosing [Mr Rader’s] financial disclosure being:
a) NAB account ending in […26] from 25 July 2018 until 28 June 2019;
b) NAB account ending in […33] from 18 February 2019 until 28 June 2019;
c) [O Limited] account ending in […92] from 3 July 2018 until 25 June 2019;
d) [O Limited] account ending in […79] from 16 July 2018 until 14 June 2019;
e) [O Limited] account ending in […67] from 12 July 2018 until 14 June 2019;
f) [O Limited] account ending in […66] from 12 July 2018 until 1 June 2019;
g) Mastercard ending in […48] from 22 October 2018 until 6 June 2019;
h) Commonwealth Bank Mastercard ending in […74] which had no balances and was difficult to read and was a running statement for the period from 1 July 2018 until 30 June 2019;
i) [Superannuation Fund 2] account statement for the period from 1 July 2018 until 30 June 2019 and a screenshot of that super statement being account ending in […89] as at 30 June 2018;
j) Notices of Assessment for [Mr Rader] for the financial year ending 30 June 2016, 30 June 2017 and 30 June 2018;
k) Individual tax return for [Mr Rader] for the year ending 30 June 2016, 30 June 2017 and 30 June 2018; and
l) Company tax return for [JJ Pty Ltd] for the period 30 June 2016, 30 June 2017 and 30 June 2018 including balance sheet, profit and loss for the year ending 30 June 2016, 30 June 2017 and 30 June 2018.
Other than some receipts which confirm the payment of monies from the [O Limited] loan account which [Mr Rader] had drawn approximately $650,000 in equity in the [Suburb J Property] in a twelve month period and the request for particulars in relation to same which was received on 3 October 2019, I did not receive any further disclosure from [Mr Rader] until 19 August 2022 when he provided partial disclosure and only in circumstances where there was a threat that the hearing of these proceedings would occur undefended.
On 28 April 2020 I deposed that [Mr Rader] has not provided me with financial disclosure and on 28 April 2020 a case outline was filed in respect to that financial disclosure
On 28 August 2020 I caused my solicitors to send a letter to the Respondent’s solicitors which made a request for financial disclosure and I made reference to previous letters requesting disclosure on five previous occasions which had not been answered and which are at [22].
Despite my requests for disclosure no disclosure was provided by [Mr Rader]. On 22 September 2020 this matter came before [a Registrar] and an order was made in relation to disclosure. On 9 October 2020 in accordance with that order, I caused a request for disclosure to be sent to [Mr Rader’s] solicitors requesting disclosure in accordance with the schedule. A copy of that letter is at [23].
On 23 November 2020 I caused my lawyers to write to the lawyers for [Mr Rader] and confirm that their disclosure was to be provided by 20 November 2020 and that it had not been provided and requesting that the disclosure be immediately provided. A copy of that letter is at [24].
On 9 August 2021 orders were made by [a Senior Registrar] in relation to the provision of disclosure. On 23 August 2021 I caused my solicitors to send a letter to [Mr Rader’s] solicitor requesting disclosure be provided by [Mr Rader] in accordance with the orders made by the court on 9 August 2021. A copy of the letter dated 23 August 2021 is at [25]. I am advised by my solicitors that [Mr Rader] did not respond to the letter dated 23 August 2021 nor provide his disclosure.
On 25 March 2022 at order 6 the Husband was ordered to provide unredacted disclosure documents as set out in the correspondence dated 23 August 2022 by no later then 8 April 2022. The Husband did not comply with that order. On 3 June 2022 order 5 of the orders of 25 March 2022 was varied so that [Mr Rader and I exchange disclosure documents by 17 June 2022. [Mr Rader] did not comply with that order and did not provide me with any disclosure. I sent letters requesting that [Mr Rader] comply with the orders concerning disclosure on 19 April 2022, 12, 25 and 30 May 2022, 17 and 27 June 2022, 18 July 2022, 5 and 16 August 2022. A copy of those letters are at [26].
On 6 September 2021 [Mr Rader] sent a letter to my former solicitors purporting to provide me with disclosure of his bank accounts. [Mr Rader] did not provide me with disclosure of his bank accounts but instead provided me with a handmade Excel spreadsheet with some dates and transactions and with the description saying “redacted” in relation to each entry. A copy of that letter and the handmade Excel spreadsheet is at [27].
At 3:55pm on 19 August 2022, on the eve of the hearing, [Mr Rader] provided partial disclosure but was far from compliant and which included the following:
a) NAB … […26] from 13 May 2021 to 12 January 2022;
b) NAB … […33] from 13 January 2021 to 12 January 2022;
c) [O Limited] ... […66] from 1 July 2021 to 30 June 2022;
d) Westpac ... […57] from 14 February 2022 to 13 March 2022, 13 October 2021 to 14 November 2021, 13 August 2021 to 12 September 2021;
e) CBA … […74] from 26 June 2021 to 23 June 2022;
f) [O Limited] loan … […92] from 1 July 2021 to 30 June 2022;
g) [O Limited] loan … […79] from 1 July 2021 to 30 June 2022;
h) [O Limited] loan … […67] from 1 July 2021 to 30 June 2022;
i) [Superannuation Fund 2] … […89] from 1 July 2020 to 30 June 2021 and a screenshot of the balance as at 18 August 2022; and
j) [GG Bank] … […75] from 9 November 2021 until 8 July 2022.
On 29 August 2022 I caused my solicitors to send a letter to the solicitors for [Mr Rader] confirming the outstanding disclosure which was still required and to date, that disclosure has still not been provided to me. A copy of that letter is at [28].
(Emphasis added)
(Wife’s affidavit filed 2 September 2022, paragraphs 106-117)
I accept the wife’s account. It sits comfortably with Orders made and the contemporaneous correspondence in Exhibit 3. That correspondence, particularly at Tabs 22 to 30 (wife’s Exhibit 3, p.146-289) demonstrated the repeated attempts of the wife’s solicitors to obtain disclosure from the husband. Tab 27 is a letter from the husband to the wife’s former solicitor with a spreadsheet of his bank accounts that have been redacted “due to family violence concerns and safety risks.” The correspondence is clearly instructive of the numerous requests made by the wife for the husband to engage with his obligation of full and frank disclosure. As also demonstrated by that correspondence, he largely did not. I find the husband failed to disclose in the particular ways identified by the wife.
I have already referred to the receipts disclosed by the husband for draws on the matrimonial mortgage totalling an approximate $325,000 of the $579,306 drawn by him, unilaterally post separation. I have found those to be post-separation contributions by both parties, along with the mortgage redraws which I cannot quantify due to the husband’s failure to disclose.
However, even acknowledging that some of the balance would have been applied to the mortgage re-draws, how the balance of about $255,000 was expended is a mystery. The wife did not ask I add back the unknown sums into the pool, but consider it as part of the wider s 75(2)(o) non-disclosure issue. It would have been well within the husband’s power to disclose how he applied the balance of the matrimonial mortgages draw downs, but he has failed in his duty of disclosure in that regard.
As the extract from the wife’s affidavit above reveals, his non-disclosure was not limited to just the mortgages.
At the hearing on 3 June 2022, the Registrar recorded this at Notation H, “The Applicant (therein the husband) did concede that both parties were under an ongoing duty of disclosure”. Nevertheless, in that same Notation the Registrar recorded Counsel for the husband saying:
compliance with the orders [of 25 March 2022] would be ‘a waste of time’.
(Notation H of the orders dated 25 March 2022)
Those Orders of 25 March 2022 included obligations on the husband (and wife) with respect to, inter alia, disclosure, filing an undertaking as to disclosure or an affidavit in lieu. Time lines were ordered for compliance. However, the Husband filed an Application for Review of those Orders and on 3 May 2022, the docket Registrar ordered that the 25 March Orders be stayed pending that Review. The Application for Review was heard by his Honour Justice Austin on 12 May 2022 and Orders were made dismissing the application.
On 3 June 2022, the husband’s application to stay the Orders of Justice Austin pending appeal was dismissed. The 3 June 2022 Orders then extended time for compliance with those March 2022 Orders for, inter alia, disclosure, the filing or an undertaking as to disclosure or affidavit in lieu to 17 June 2022. I have no evidence before me that the husband complied with that 17 June deadline. Indeed, when the matter was before me on 22 August 2022, his Counsel (a different one from Counsel who made the waste of time submission made in March 2022) submitted and very appropriately in the circumstances:
The husband has no excuse. It is clear from the orders of 3 June and 25 March that non compliance is extensive and unacceptable
The husband also relied on a Financial Statement in his name (signed by his lawyer under the Covid measures) filed 19 August 2022, wherein he confirmed:
(a)I have read Rule 6.06 and I am aware that by law I have an obligation to make a full and frank disclosure of my financial circumstances to the Court and each other party. In particular, I have disclosed in this document or in an affidavit filed by me or on my behalf under Rule 6.06(6), all matters I am required to disclose under Rule 6.06.
(Husband’s Financial Statement filed 19 August 2022, p.1)
It is plain that he did not disclose “all matters I am required to disclose under Rule 6.06”.
Accordingly, I find that:
(a)The husband was alert to his ongoing duty of disclosure;
(b)The husband persistently made inadequate disclosure;
(c)The husband failed to make full and frank disclosure; and
(d)The husband declined to produce relevant documents and some documents produced by him were actually some form of spreadsheet, which had been significantly redacted.
I also find the husband’s failure to disclose was deliberate, because of the numerous unanswered requests, the production of a redacted spreadsheet, and the orders made for disclosure, which were not complied with.
Thus, I was left in doubt as to whether the husband had undisclosed assets, or assets of value (the “not knowns”), to which I have already referred under the Balance Sheet heading. I am also left without disclosure that may or may not have supported the husband’s financial statement, income and resources, which made it difficult to consider the relevant s 75(2) factors such as the income, property and financial resources of each of the parties. I have already indicated I place little if any weight on his unexplained excess of expenses of income.
This matter falls within the kinds of cases to which the Full Court in Weir and Weir (1993) FLC 92-338 said at 79,593:
This Court has pointed out in a line of cases leading up to the recent decision of the Full Court in Black and Kellner (1992) FLC 92-287, that it is the duty of a party involved in property proceedings in this jurisdiction to make a full disclosure of their financial affairs. See also Giunti and Giunti [1986] FamCA 15; (1986) FLC 91-759, and Mezzacappa and Mezzacappa [1987] FamCA 20; (1987) 11 Fam LR 957; (1987) FLC 91-853. It is clear enough from his Honour's findings in the present case that the husband had not done so and had in fact pocketed the proceeds of a substantial number of cash sales. It is obvious that in most cases of this nature it is difficult enough for the other party to establish that fact let alone establish the quantum of what has been taken.
It seems to us that once it has been established that there has been a deliberate non-disclosure, which follows from his Honour's findings in this case, then the Court should not be unduly cautious about making findings in favour of the innocent party. To do otherwise might be thought to provide a charter for fraud in proceedings of this nature.
The husband’s failure to disclose was woeful.
Conduct
Order 14 of the 25 March 2022 Order provided:
That the parties shall comply with any reasonable request of the Single Expert to provide information and documents to complete the report within seven (7) days of request from the expert, to the extend those documents are within the party’s power, possession or control, including providing reasonable access to any property to be valued.
(Emphasis added)
I have previously set out the husband’s review and stay applications consequent on the making of this Order. However, when that process was exhausted, the bottom line was the husband did not provide the Single Expert with access to the property. Counsel who appeared before me on 22 August 2022, told the Court that he would allow the valuer in by the end of that week. But, it turns out he did not. In the event he did not, the wife was at liberty to furnish the Court with “whatever evidence she is able to obtain with respect to the valuation of the [Suburb J] property. That was the course the wife had to take.
In Tate & Tate [2000] FamCA 1040 the husband thwarted the valuation of his model car collection, amongst other matters of non-compliance. The Court said this at [75]:
It is not for litigants, appearing in person or otherwise, to pick and choose which orders they will or will not obey, or when they may condescend to comply with them. Such an attitude, amply evidenced in this matter, if adopted, brings its own nemesis. That is not only because it is contemptuous of the court's orders. It is also because it works injustice to the parties who do comply, and unfairness to that myriad of litigants waiting to have their matters despatched as soon as the court can hear them. The luxury of procrastination — let alone deliberate disobedience — is a luxury of the past if it ever existed.
Those words are appropriate to this matter. The husband’s conduct made the wife’s road to trial unnecessarily steeper.
It reflected poorly on the husband to not comply with the order to allow the Single Expert valuer to access the property. More likely than not, the wife was put to the cost of securing an alternate valuation, although the quantum of costs was not before me.
Subsections (2)(p) and (q) – the terms of any financial agreement and any Part VIIIAB financial agreement that is binding on the parties to the marriage
These are not relevant.
Evaluation of s 75(2) factors
Taking into account all relevant matters, and acknowledging the husband has the care and control of the children who are almost adults, his superior financial position over the wife, her poor employment prospects and the husband’s woeful non-disclosure and conduct impeding the Single Expert, I find that an adjustment of 10 per cent in the wife’s favour is warranted.
I have not accepted the husband’s claim of Post Traumatic Stress Disorder or other health issues. I do not accept the wife has the earning capacity that the husband claimed.
On a pool of $4,554,754 that 10 per cent is the monetary sum of $455,475. It is a 20 per cent differential equating to $910,951 in monetary terms.
For reasons given later, I will order the Suburb J property be sold. It may sell for more or less than the valuation, which means each parties’ actual monetary entitlement will vary, but will vary proportionally so.
The artwork
By her Amended Case Outline (Exhibit 2), the wife sought the following additional Order:
That within 7 days the Wife shall organise for a third party removalist to attend the [Suburb J] property and collect all of the Wifes’ artwork which bears the name “[Ms Haines]” or “[Ms Haines]” or “[…]” (Wifes’ Artwork) and the Husband shall facilitate the removal of the Wifes’ Artwork and not interfere with the collection of the Wifes’ Artwork by the third party removalist.
I was told the Amended outline was sent to the husband’s solicitors, but only on the eve of the final hearing, being 5 September 2022. Yet, the husband had 14 days from the provision of the transcript to provide submissions on this or anything else. He did not.
Nevertheless, this was also a change of position on the part of the wife, albeit slight, made well outside the time frame for filing Outlines. In those circumstances, whilst I accept these additions came to the husband’s attention, I am not prepared to make the orders sought by the wife. I am also not prepared to make orders which in all likelihood will lead to further disputes between the parties (see s 81 of the Act), with the husband saying, for example, that he does not have the art work, and the wife, retorting that he must do.
WHAT PROPERTY ORDER IS APPROPRIATE TO ACHIEVE A JUST AND EQUITABLE OUTCOME?
The property of the parties or either of them will be divided so to reflect the applicant wife receiving 60 per cent of the assets and liabilities on the balance sheet and the respondent husband receiving 40 per cent of the net overall asset pool.
On a pool of $4,554,754 and at a 60 per cent adjustment, the wife will receive $2,732,852 (rounded), and the husband $1,821,902 (rounded). That is a 20 per cent differential of $910,951. If the Suburb J property sells for more or less than the valuation before me, then each parties’ actual monetary entitlement will vary, but will vary proportionally so.
Standing back, for all of the reasons given, I find this just and equitable.
The orders I will make are largely based on the orders proposed by the wife, but not the art work. The husband’s orders are unworkable. The husband had notice of the wife’s position well before trial, and that was for the sale of the Suburb J property. Indeed, at paragraph 74 of his affidavit, the husband said this:
I continue to live in the [Suburb J Property] with the children, and the property may be sold at the conclusion of these proceedings.
It will come as no surprise to the husband then, that the property will be sold. Neither party proposed that the husband have the opportunity to pay out the wife, and then the property be sold if he could not. Where neither party asked for such an order, I will not make one. I am conscious that this will uproot the children, but that will be necessary for a just and equitable property division between their parents. Further, this is something which the husband has contemplated by the extract from his affidavit above, and at paragraph 74 where he says they will move to a three bedroom apartment.
The husband proposed that if I were to make a property adjustment order then the wife receive a superannuation split. He did not however propose an amount and provided no evidence of procedural fairness to the Trustee. In those circumstances, I will not make any superannuation splitting orders.
I have largely adopted the Orders proposed by the wife in her 17 August 2022 Further Amened Initiating Application. The husband had knowledge of her position that the Suburb J property be sold, and terms of sale, at least from then.
I have made some amendments to those orders as follows:
(a)The wife’s Further Amended Initiating Application sought the husband vacate the property and it be listed for sale within 14 days. In her updated Minute, she said 21 days. Given the time of year, I will order the husband to vacate the property and it be listed for sale within 28 days;
(b)I have added an obligation to Order 1.1, that when the husband vacates the Suburb J property, he leave the property in good condition and provide the keys and access devices to the appointed agent as soon as he vacates and the agent is appointed. The good condition requirement was implicit in an order sought by the wife at 2.6.2 of her Further Amended Initiating Application, but I will make that clear as part of the vacation order. I will make the order about the keys and access devices being handed to the appointed agent so the parties do not have to agree (or more likely disagree) on this practical requirement;
(c)I have added orders that if the husband fails to engage in selecting the listing agent and/or the solicitor, then the need for his signature on the required documents is dispensed with. The husband’s conduct in this matter gives me no confidence that he would sign anything if he did not want to. I will also make a s 106A order to assist with compliance;
(d)The wife sought an order that on a second auction, if the property does not reach the reserve, the parties are required to engage with the highest bidder and sell the property. However, she then sought an order that they engage with a prospective seller with a five per cent reduction on the asking price. They run counter to each other – sell it, but then reduce the price. I will make the sell order, but not the five per cent order;
(e)When the proceeds are being distributed, I have added provision for the auctioneer to be paid. That may be something the listing agent takes care of, but I do not know. Instead, I will make it clear the auctioneer is to have their costs;
(f)Still with the proceeds of sale, I have not made the order sought by the wife that the mortgage at separation be paid from the sale proceeds and the husband be responsible for all since then. I have already given reasons for that;
(g)I have however made an order that the mortgages which both parties put before me in their balance sheets be paid. In the event the husband has further drawn on the mortgage since those balances, he will be responsible for that from his entitlement. It would defeat the orders of this court if the husband had further drawn on mortgages and thereby prejudiced or defeated the wife’s entitlement as otherwise provided for herein; and
(h)I have also formatted the order a little differently, itemised out long proposed orders and added some signposts such as first auction and second auction.
I am satisfied that the proposed property settlement orders achieves a just and equitable outcome.
I certify that the preceding three hundred and five (305) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Brasch. Associate:
Dated: 21 December 2022
3
16
0