HANSON & HANSON (No.2)

[2013] FCCA 1500

FEDERAL CIRCUIT COURT OF AUSTRALIA

HANSON & HANSON (No.2) [2013] FCCA 1500

Catchwords:
FAMILY LAW – Property – application for property settlement – where respondent failed to attend Court – just and equitable – where amounts representing premature distribution to the respondent added back into the asset pool – where applicant seeking orders for an amount less than she might otherwise have been entitled to receive.

COSTS – Application for costs – where costs reserved on previous occasions.

Legislation:

Family Law Act 1975 (Cth), ss.75, 79, 90MT, 106A, 117

Family Law (Superannuation) Regulations 2001
Federal Circuit Court Rules 2001, rr.13.03C, 16.05, Sch. 1

Cases cited:
Hickey & Hickey [2003] FamCA 395; (2003) 30 Fam LR 35; FLC 93-143
Mayne & Mayne [2011] FamCAFC 192; (2011) 46 Fam LR 197; FLC 93-479
Omacini & Omacini [2005] FamCA 195; (2005) 33 Fam LR 134; FLC 93-218
Stanford v Stanford [2012] HCA 52; (2012) FLC 93-518
Townsend & Townsend (1994) 18 Fam LR 505; FLC 92-569

Applicant: MS HANSON

Respondent: MR HANSON

File Number: SYC 4408 of 2012

Judgment of: Judge Scarlett

Hearing date: 23 September 2013

Date of Last Submission: 23 September 2013

Delivered at: Sydney

Delivered on: 27 September 2013

REPRESENTATION

Solicitor for the Applicant: Mr Marhinen

Solicitors for the Applicant: Armstrong Legal

The Respondent: No appearance

ORDERS

1. An Order by way of alteration of property interest under s.79 of the Family Law Act 1975 (Cth) is to be made in terms of paragraphs (2) to (13) below and further Orders are to be made in accordance with the balance of paragraphs in these Orders.

2. As between the parties, the Applicant Wife shall be entitled to receive all of the net proceeds of sale of the former matrimonial home situate at and known as Property L, in the State of New South Wales (referred to as “the Property L property”), together with all interest that may have accrued on such monies from the date of initial deposit, being the proceeds now held in a controlled monies account with Armstrong Legal.

3. Armstrong Legal is requested within seven (7) days of the date of these Orders to release to the Wife all monies held in its controlled monies account representing the net sale proceeds of the Property L property.

4. As between the parties, the Wife shall retain sole legal and beneficial ownership of the Hyundai (model omitted) motor vehicle in her possession and shall indemnify and keep indemnified the Husband in respect of all liabilities in relation to the said motor vehicle however and whenever arising.

5. As between the parties, the Husband shall retain sole legal and beneficial ownership of the following:

   (a)Any and all monies received by him which previously represented equity held in the Property L property;

   (b)The sale proceeds received from the sale of the Husband's Mazda (model omitted) motor vehicle (now sold);

   (c)The Husband's (vehicle omitted) car; and

   (d)The Husband’s boat.

6. As between the parties, the Husband shall be solely responsible for and shall indemnify the Wife in relation to all liabilities in his sole name.

7. As between the parties, the Wife shall be solely responsible for and shall indemnify the Husband in relation to all liabilities in her sole name.

8. The base amount of eighty seven thousand dollars ($87,000.00) is allocated, as required by Section 90MT of the Family Law Act 1975 to the Wife out of the interest of MR HANSON (“the Husband”) in the superannuation fund known as (omitted) Super.

9. Pursuant to paragraph 90MT(1)(a) of the Family Law Act 1975, whenever the trustee of (omitted) Super (“the trustee”) makes a splittable payment from the interest held by the Husband, the trustee shall pay to the Wife or her administrators, executors, beneficiaries, heirs or assigns the entitlement calculated in accordance with Part 6 of the Family Law (Superannuation) Regulations 2001, and there shall be a corresponding reduction in the entitlement the Husband would have had in (omitted) Super but for this Order.

10. Order (9) above shall take effect from the operative time, and the operative time shall be seven (7) days from the date of service of this Order upon the trustee of (omitted) Super.

11. The trustee of (omitted) Super, in accordance with the obligations set out under the Family Law Act 1975 and the Family Law (Superannuation) Regulations 2001 shall do all such acts and things and sign all such documents as may be necessary to calculate the entitlement of, and make payment to, the Wife in accordance with Order (14).

12. These Orders shall bind the trustee of (omitted) Super.

13. Subject to the above Orders, each party shall otherwise retain sole legal and beneficial ownership of:

    (a)all personal property now in his or her respective possession or control;

    (b)all shares, debentures, units in unit trusts, accounts held at any bank, building society, credit union or financial institution standing in his or her sole name respectively; and

    (c)any interest in any life insurance policy or superannuation fund standing in his or her sole name respectively as at the date of these Orders.

14. In the event that either party refuses or neglects to execute any document necessary to give effect to any or all of these Orders, then a Registrar of the Federal Circuit Court of Australia shall be appointed pursuant to section 106A of the Family Law Act 1975 to execute all such documents in the name of the said party.

15. Pending implementation of these Orders, including implementation of the superannuation splitting provisions set out above, the Husband shall be and is restrained by way of injunction from:

    (a)transferring, rolling over, or otherwise dealing with his superannuation member entitlements held with (omitted) Super in any way;

    (b)accessing, cashing in, or realising in any form his superannuation member entitlements held with (omitted) Super; and

    (c)doing any act or thing, or authorising any other person acting on his behalf to do any act or thing which causes the value of his superannuation member entitlements held with (omitted) Super to decrease.

16. The Husband is to pay the Wife’s Costs of and incidental to these proceedings in the sum of $7,249.00 within twenty-eight (28) days.

17. The solicitor for the Wife is to forward to the Husband by pre-paid post a sealed copy of these Orders within seven (7) days.  

THE COURT NOTES

The hearing of the Application proceeded in the absence of the Respondent under the provisions of Rule 13.03C. The Respondent’s attention is drawn to the provisions of Rule 16.05 which deals with the powers of the Court to vary or set aside a judgment or order.

IT IS NOTED that publication of this judgment under the pseudonym Hanson & Hanson is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYC 4408 of 2012

MS HANSON

Applicant

And

MR HANSON

Respondent

REASONS FOR JUDGMENT

Application

1. This is an Application by the wife for orders for settlement of the parties’ property under s.79 of the Family Law Act 1975 (Cth). The Application is noteworthy for the fact that the Husband has never attended Court and has never filed a Response or any other documents. He was represented by a solicitor on one occasion but no Notice of address for Service was ever filed.

2. As I am satisfied as to service and that the Husband has been given more than adequate notice of the Wife’s Application, I have decided to proceed with the hearing generally in the Husband’s absence, as provided by Rule 13.03C.

Orders Sought

1. The orders sought by the Applicant are set out in her Amended Initiating Application filed on 4^th June 2013.

2. In summary, she seeks orders that:

   a)She should receive the net proceeds of sale of the former matrimonial home at Property L, plus interest, currently being held in a controlled monies account by her solicitors;

   b)She should retain her Hyundai motor car;

   c)The Respondent should retain:

   i)Any monies he has previously received representing equity in the former matrimonial home;

   ii)The proceeds of sale of his Mazda motor vehicle;

   iii)His (model omitted) car; and

   iv)His boat;

   d)The parties should indemnify each other in relation to all liabilities in their sole names;

   e)That there should be a superannuation splitting order under subsection 90MT(4) of the Family Law Act 1975 with a base amount of $87,000.00 allocated to the Applicant out of the Respondent’s interest in his superannuation fund;

   f)That the parties should retain items of personalty in their possession or sole name;

   g)If a party refuses or neglects to execute any document a Registrar of the Family Court of Australia[1] shall be appointed to execute the necessary document under s.106A of the Family Law Act 1975;

   h)Until the orders are implemented the Husband should be restrained by injunction from dealing with his superannuation entitlements; and

   i)The Husband should pay the Wife’s costs on an indemnity basis.   

   [1] This is presumably a clerical error and what is actually meant is a Registrar of the Federal Circuit Court of Australia

3. The Respondent did not file a Response and has not sought any Orders.

Background

1. The parties were both born in (country omitted). The Husband is 61 years of age and the Wife is 57. They were married in (country omitted) on (omitted) 1978. There are two children of the marriage, both of whom are now adults and self-supporting.

2. The parties arrived in Australia in (omitted) 1987 and have resided in Australia ever since. They are both Australian citizens.

3. The parties separated on 24^th May 2011 when the Wife left the matrimonial home which was situated in Property L, New South Wales. The parties were divorced by an Order of this Court made on 6^th September 2012.

4. The Applicant commenced these proceedings by filing an Application on 31^st January 2013. The Application was listed urgently and was made returnable on 11^th February because of the imminence of the sale of the former matrimonial home. The Respondent did not attend Court.

5. On 11^th February 2013 interim Orders were made:

   a)providing that on completion of the sale of the property at Property L the net proceeds should be held in an interest bearing controlled monies account by the Applicant’s solicitors;

   b)the Respondent was to be restrained by way of injunction from selling, mortgaging or altering the title to the property or increasing the debt secured on the property by way of mortgage;

   c)the Respondent should be responsible for paying all the outgoings on the property up to the sale;

   d)the Respondent should advise the Applicant’s solicitors of the name and address of the solicitor or conveyancer acting on the sale of the property; and

   e)the Respondent should authorise the solicitor or conveyancer acting on the sale to provide copies of all documents and information about the sale.       

6. The Application was adjourned to 4^th March 2013, upon which date a solicitor appeared for the Respondent and sought an adjournment until the next day. He did not attend Court on the next occasion nor did he file any documents on behalf of the Respondent.

7. On 5^th March 2013 Orders were made appointing the Applicant trustee for sale of the Property L property and requiring the Respondent to sign the documents necessary to complete the sale of the Property L property. A Registrar of the Court was appointed under s.106A of the Family Law Act 1975 to execute any document on behalf of any party who failed to do so when required. The Respondent was also ordered to file and serve a Response, a Financial Statement and an affidavit in support within fourteen days. No such documents were ever filed.  

8. The Application was adjourned to 3^rd April 2013 for mention. Again, there was no appearance by or on behalf of the Respondent. An order was made adjourning the Application to 20^th May 2013 for an undefended hearing and stating:

   The Respondent is advised that if he does not attend court on the next occasion then orders may be made in his absence.

9. On 12^th April 2013 a Registrar executed a Transfer of the title of the Property L property in place of the Respondent.

10. On 20^th May 2013 the Applicant’s solicitor attended Court but there was no appearance by or on behalf of the Respondent. Leave was granted to file and serve an Amended Application returnable on 2^nd July 2013.

11. The Applicant’s solicitor attended Court on 2^nd July 2013 but there was no appearance by or on behalf of the Respondent. The Application was adjourned to 9^th August 2013, on which date it was listed for hearing on 23^rd September 2013.

12. There was no appearance by or on behalf of the Respondent at the hearing. A decision was made to proceed with the hearing generally under the provisions of Rule 13.03C(1)(e).

Evidence and Submission

1. The Applicant relied on her affidavit of 30^th July 2013. She gave oral evidence to confirm the truth of the matters deposed to in her affidavit. The Applicant told the Court that she did not wish the Respondent to know her current residential address for reasons of her personal safety and I directed that her address should be placed on the Court file in a sealed envelope, to be opened only by order of a Judge.

2. The Applicant’s solicitor, Mr Marhinen, had prepared a written submission in the form of a Case Outline Document, which included a balance sheet and a useful table showing the effect of the orders sought by the Applicant in monetary and percentage terms.

3. The Court was referred to the decision of the High Court of Australia in Stanford v Stanford[2], where their Honours (French CJ, Hayne, Kiefel and Bell JJ) considered the operation of s.79 of the Family Law Act 1975, particularly the requirement under s.79(2) for the Court to be satisfied that any proposed order is just and equitable.

   [2] [2012] HCA 52; (2012) FLC 93-518

4. It was submitted that the parties are separated and now divorced. They no longer have the common use and enjoyment of the matrimonial property. At the time of separation, the parties’ primary non superannuation asset was the matrimonial home at Property L, the title to which was solely in the Husband’s name. However, it was submitted that the Applicant had made substantial and non-financial contributions, and it was their home. Thus, it will be necessary to make orders to do justice and equity between the parties so as to enable the Applicant to realise her entitlement to an interest in the property.

5. Mr Marhinen submitted that the property of the parties includes “notional assets” or “addbacks”, and the Court was referred to the following authorities:

   a)Omacini & Omacini[3];

   b)Mayne & Mayne[4]; and

   c)Townsend & Townsend.[5]

   [3] [2005] FamCA 195; (2005) 33 Fam LR 134; FLC 93-218

   [4] [2011] FamCAFC 192; (2011)46 Fam LR 197; FLC 93-479

   [5] (1994) 18 Fam LR 505; (1995) FLC 92-569

6. In this case, the Applicant contends that there has been a premature distribution of matrimonial assets by the Respondent, in that he obtained money by drawing against the mortgage on the former matrimonial home and retained the proceeds of sale of two cars and a boat trailer.

7. The Applicant seeks orders that would entitle her to approximately 37.56% of the asset pool, leaving the Respondent with assets amounting to 62.44% of the asset pool. Mr Marhinen conceded that this division is far from generous to the Applicant but told the Court that he was bound by his instructions.

8. The Applicant seeks an order that the Respondent should pay her costs. Whilst the Amended Application refers to costs “on an indemnity basis”, the Court was told that this would not be pressed. Costs are sought according to scale.

The proper approach to determination of a property application

1. The decision of the High Court in Stanford v Stanford[6] requires a court faced with an application for the determination of property matters under s.79 of the Family Law Act 1975 to consider first of all the requirement in subsection 79(2) of the Act that:

   The Court shall not make an order under this section unless it is satisfied that, in all the circumstances, it is just and equitable to make the order.

   [6] supra

2. In my view, this decision requires the Court to consider whether it is just and equitable to make an order under s.79 at all, before embarking on the four step process set out by the Full Court of the Family Court in Hickey & Hickey.[7]The High Court held that there are three fundamental propositions:

   37.First, 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 principles, the existing legal and equitable interests of the parties in the property…

   38.Second, although s. 79 confers a broad power on a court exercising jurisdiction under the Act to make a property settlement order, it is not a power that is to be exercised according to an unguided judicial discretion…(but) “in accordance with legal principles, including the principles which the Act itself lays down”.

   40.Third, whether making a property settlement order is “just and equitable” is not to be answered by beginning from the assumption that one or other party has the right to have the property of the parties divided between them or has the right to an interest in marital property which is fixed by reference to the various matters (including financial and other contributions) set out in s.79(4).[8]

   [7] [2003] FamCA 395; (2003) 30 Fam LR 35; FLC 93-143

   [8] Stanford v Stanford (supra) at [37]-[38] & [40] per French CJ,     Hayne , Kiefel and Bell JJ

3. Having made a preliminary decision that it would be just and equitable to make an order under s.79, the court should then undertake the four inter-related steps set out in Hickey[9]:

   Firstly, the Court should make findings as to the identity and value of the property, liabilities and financial resources of the parties at the date of hearing. Secondly, the Court should identify and assess the contributions of the parties…and determine the contribution based entitlements of the parties expressed as a percentage of the net value of the property of the parties. Thirdly, the Court should identify and assess the relevant matters…including…the matters referred to in s.75(2) so far as they are relevant…Fourthly, the Court should…resolve what order is just and equitable in all the circumstances of the case.[10]

   [9] supra

   [10] Hickey & Hickey (supra) at [39] per Nicholson CJ, Ellis and O’Ryan JJ

4. It can be seen that the Court must consider whether it is just and equitable to make an order under s.79 before undertaking the process set out in Hickey and again as the fourth step in that process. This is not unnecessary repetition because different considerations are involved.

5. First, the Court must consider the general question whether it would be just and equitable to make a property order at all. As their Honours held in Stanford at [49]:

   No basis was identified at first instance, on appeal to the Full Court, or in argument in this Court, for concluding that it was just and equitable to make any order dividing the parties’ property between them.

6. Second, once the Court has decided whether it would be just and equitable to make a property order, the Court must then consider the asset pool, the parties’ contributions and whether any adjustment should be made under s.75(2) of the Act. Having done so, the Court must then consider whether the terms of a particular order proposed to be made would be just and equitable. There may be reasons why a particular order would not be just and equitable, having regard to all the circumstances.

7. All of the above principles have been considered.

Just and equitable

1. In this case, the parties have been separated since the Applicant left the matrimonial home on 24^th May 2011. The marriage has irretrievably broken down and a divorce order was made on 6^th September 2012. The parties’ main asset other than superannuation is the matrimonial home, the title to which was solely in the Respondent’s name. However, the Applicant claims that she has made substantial and financial contributions to the parties’ assets and, without an Order under s.79, she will be unable to obtain a fair proportion of the assets.

1. I am satisfied that, in all the circumstances, it is just and equitable to make a property order under s.79 of the Family Law Act 1975.

The Parties’ Property and Liabilities

1. The solicitor for the Applicant has provided a balance sheet, setting out the parties’ assets as the Applicant is aware of them. The Respondent has provided no financial information.

2. It is the Applicant’s case that certain property should be added back to the asset pool.

3. The Applicant relies on the decision of the Full Court of the Family Court in Omacini & Omacini[11] in support of the proposition that there has been a premature distribution of matrimonial assets by the Respondent to himself.

   [11] supra

4. In Omacini the Full Court held at [30]:

   To date, three clear categories of cases have emerged where the court has determined that it is appropriate to notionally add back to the pool of assets, that is, assets that no longer exist. They are:

   (a)    Where the parties have expended money on legal fees…

   (b)Where there has been a premature distribution of matrimonial assets. In In the Marriage of Townsend (1994) 18 Fam LR 505; (1995) FLC 92-569 Nicholson CJ as he then was with whom Fogarty and Jordan JJ agreed, said at Fam LR 509; FLC 81,654:

   In my view, what occurred in this case, as I said during the course of argument was, in fact, a premature distribution of a proportion of the matrimonial assets. What the husband did was to distribute to himself an asset in which the wife had a legitimate interest…

   (c)In the circumstances outlined by Baker J in In the Marriage of Kowaliw (1981) 7 Fam LN N13; (1981) FLC 91-092 at FLC 76,644:

   As a statement of general principle, I am firmly of the view that financial losses incurred by parties or either of them in the course of a marriage whether such losses result from a joint or several liability, should be shared by them (although not necessarily equally) except in the following circumstances:

   (a)    where one of the parties has embarked upon a course of conduct designed to reduce or minimise the effective value or worth of matrimonial assets; or

   (b)    where one of the parties has acted recklessly, negligently or wantonly with matrimonial assets, the overall effect of which has reduced or minimised their value.

   Conduct of the kind referred to in para (a) and (b) above having economic consequences is clearly in my view relevant under s75(2)(o) to applications for settlement of property instituted under the provisions of s 79.[12]

   [12] Omacini & Omacini (supra) at [30] per Holden, Warnick & Le Poer Trench JJ

5. The Applicant also referred the Court to the decision of Faulks DCJ in Mayne & Mayne[13] where his Honour held at [73]:

   Parties to proceedings about the division of property before the Family Court (and the Federal Magistrates Court) frequently urge the court to add-back assets or funds that have been applied by one party or another for allegedly his or her own purposes after separation. The rationale is that one party should not benefit from a premature distribution of the assets. An obvious example is withdrawing and using money from a bank account either joint or owned by one of the parties. It is also the case that the parties may decrease the pool by increasing liabilities. The issue in such cases is whether the liability should be a joint liability or a liability only of the party who created it.[14]

   [13] supra

   [14] Mayne & Mayne (supra) at [73] per Faulks DCJ

6. The Applicant contends that there are four separate amounts that should be added back into the asset pool:

   a)An amount of $292,588.98 obtained by the Respondent from the (omitted) Bank by way of a mortgage against the former matrimonial home at Property L, which was unencumbered at the date of separation;

   b)The sum of $2,290.00 being the proceeds of the sale in November 2011 of the Respondent's (model omitted) car retained after the parties’ separation in May 2011;

   c)The sum of $6,000.00 being the proceeds of the sale in November 2011 of the parties’ Mazda (model omitted) motor vehicle; and

   d)The sum of $500.00 being the proceeds of the sale in September 2011 of a (omitted) boat trailer after the parties’ separation.

7. In my view, the Applicant’s contention should be accepted. These amounts should be added back into the asset pool.

Non-superannuation asset pool

1. I find the value of the non-superannuation asset pool to be:

   a)Proceeds of sale of Property L property                $74,024.00

   b)Respondent's Toyota (model omitted) motor car  $7,300.00

   c)Respondent’s boat  $27,000.00

   d)Monies from (bank omitted) by Respondent added back         $292,588.98

   e)Proceeds of sale by Respondent of (vehicle omitted)                    $2,290.00

   f)Proceeds of sale by Respondent of Mazda (model omitted)      $6,000.00

   g)Proceeds of sale by Respondent of boat trailer                  $500.00

   h)Applicant’s Hyundai (model omitted) car  $13,000.00

   i)Applicant's (bank omitted)  $5,489.85

   j)Applicant’s Bank of (country omitted) account              $50,481.00

   k)Respondent’s savings  Not known

   l)Respondent’s savings in (country omitted)                    $45,000.00

   m)Respondent’s investments from inheritance                  $45,000.00

   n)Respondent’s estimated 1,000 (omitted) shares            $4,960.00

o)Respondent’s furniture and house contents                   Not known

Total non-superannuation assets   $573,633.83

1. There are no liabilities disclosed.

Superannuation

1. The Applicant has an interest in (omitted) Super  $47,682.00

1. The Respondent has an interest in (omitted) Super              $118,001.22

Total superannuation assets   $165,683.22

1. The total value of the asset pool, adding the non-superannuation assets to the parties’ total superannuation, amounts to $739,317.05.

The Parties’ Contributions

1. The Applicant relies on her affidavit of 30^th July 2013. Her evidence is that the parties were married on (omitted) 1978 and lived together until separation on 24^th May 2011. There are two children of the marriage, both adults.

2. Neither party had any significant asset when cohabitation commenced.

3. It is the Applicant’s evidence that the Respondent was in paid employment throughout the marriage. She was the primary carer for the children and the homemaker. However, she worked as a (occupation omitted) from 1982 until 1985, whilst the parties were living in (country omitted).[15]

   [15] Affidavit of Ms Hanson 30.7.2013 at paragraph [31]-[32]

4. After the parties returned to (country omitted), the Applicant did not work in paid employment but remained at home to care for the children. She also undertook the full-time care of the Respondent’s grandmother, who was aged 87.[16]

   [16] Ibid at [32]

5. After the parties moved to Australia in 1987, the Applicant remained living at home, acting as homemaker and full-time carer for the children.

6. In 1991, the parties opened a (country omitted) take away food shop, which the Applicant operated until 1994, when the business closed. She deposed that she worked for seven days a week, from 9:00am to 10:00pm each day.[17] The business did not make money and the Applicant estimated that they lost about $50,000.00 over the three years that they operated the business.[18]

   [17] Ibid at [34]

   [18] Ibid at [36]

7. The Applicant remained at home as a full-time carer for the children and homemaker from 1994 until 1998, when she commenced a full-time university degree at (omitted) University, which qualified her as a (occupation omitted).[19] She commenced work as a (occupation omitted) in 2002.[20] She remains working in that field.

   [19] Ibid at [38]

   [20] Ibid at [39]

8. The Respondent worked in the (omitted) in 1991 and then commenced full time university study, first at the (omitted) University and then at the (omitted) University. He commenced work as a (occupation omitted) in the mid-1990s and is still employed in that field.

9. The Applicant deposed that in 2009 the Respondent received an inheritance from his late father’s estate in a sum equivalent to $90,000.00. The Applicant believes that half of that money remains in a bank account in the Respondent’s sole name in (country omitted) and the balance was invested in shares in (country omitted).[21]

   [21] Affidavit of Ms Hanson 30,7.2013 at [47]

10. The Applicant also received an inheritance from her mother’s estate in an amount equivalent to about $40,000.00. At the Respondent’s request, she gave him about $10,000.00, which he invested but subsequently lost.[22]

    [22] Ibid at [48]-[49]

11. The Applicant set out in some detail in her affidavit evidence of the Respondent’s violent and abusive behaviour towards her over the course of the marriage. She deposed that the Respondent would often drink to excess, mainly on weekends. This made his behaviour “erratic and unpredictable.”[23]

    [23] Ibid at [74]

12. The Applicant deposed that about two weeks before separation, the Respondent threw a knife at her, which lodged in a wall about two metres from her. She feared for her life.[24] She left him on 24^th May 2011. She does not wish the Respondent to know her address.

    [24] Ibid

13. On the evidence available, all of which comes from the Applicant as the Respondent has declined to file any affidavit or financial statement, I am satisfied that the parties’ contributions should be assessed as equal, although an argument could well be made that the contributions would favour the Applicant to some extent.

Other Factors taken into account under subsection 79(4)(d) to (g)

1. Paragraph (d) of subsection 79(4) requires the Court to take into account the effect of any proposed order on the working capacity of either party. There does not appear to be any effect on the working capacity of either party. They are both employed as (occupation omitted) and will continue to work in that profession.

2. Paragraph (e) of subsection 79(4) requires the Court to take into account the matters referred to in subsection 75(2) so far as they are relevant.

3. The Applicant was born on (omitted) 1956. She is 57 years of age. The Respondent was born on (omitted) 1952. He is 62 years of age.

4. The Applicant deposes that she is in “reasonably good physical health” for her age.[25] She believes that the Respondent is also in good health, although she believes that he may have sustained a back injury. She does not believe that this injury would preclude him from working.

   [25] Affidavit of Ms Hanson 30.7.2013 at [118]

5. The parties are both in employment as (occupation omitted). The Applicant is employed as a (occupation omitted), at a rate of $360.00 gross per day, without any leave entitlement. She normally works for five days a week, grossing $1,800.00. She states that her gross annual income from employment in the last financial year was approximately $47,000.00.[26]

   [26] Ibid at [111]-[112]

6. The Applicant deposes that the Respondent works full time on a permanent basis. She believes he earns approximately $84,000.00 per annum as a (occupation omitted).[27]

   [27] Ibid at [113]

7. Neither party has the care and control of a child of the marriage who is under the age of 18 years. Their children are adults and self-supporting.

8. Neither party has a commitment to support any other child or a responsibility to support any other person.

9. Each party has an interest in a superannuation fund. There is, however, a significant discrepancy in their superannuation entitlements. The Applicant’s interest in (omitted) Super amounts to $47,682.00, whilst the Respondent’s interest in (omitted) Super amounts to $118,001.22.

10. The Applicant’s standard of living has been reduced. She deposes that:

    At present, I have no accommodation of my home (sic), and after these proceed8ings are complete I will need to re-establish and re-accommodate myself. I do not expect that I will (be) able to afford to purchase my own home in Sydney as I simply do not have the funds to do so. I anticipate that I will need to rent a small home unit or similar.[28]

    [28] Affidavit of Ms Hanson 30.7.2013 at [116]

11. There is no information available about the respondent’s standard of living other than his employment and the assets which are referred to in the Applicant’s affidavit.

12. The Applicant is not cohabiting with another person. There is no evidence that the Respondent is cohabiting with another person.

13. Neither party has any liability to pay child support under the Child Support (Assessment) Act 1989 (Cth)(see also s.79(4)(g)).

14. The only other Order made under the Family Law Act 1975 affecting the parties is the Divorce Order made by this Court on 6^th September 2012.

15. The Respondent’s greater earning capacity and greater amount of superannuation would permit an adjustment in favour of the Applicant of at least 5%.

Just and Equitable

1. The Applicant submits that on the basis of what she contends the asset pool to be, the effect of the orders that she seeks would give to her assets to the value of $277,676.00, amounting to 37.56% of the asset pool. This would leave the Respondent with assets to the value of $461,640.00, amounting to 62.44% of the asset pool.

2. This proposed division of the matrimonial assets would appear to be less than generous to the Applicant, whose entitlement would to my mind be in the range of 50% to 60% of the asset pool. Nevertheless, Mr Marhinen, who appeared for the Applicant and has acted for her throughout these proceedings, has informed the Court that he is bound by the instructions that he has received from his client.

3. I am mindful that the Respondent has neither appeared nor been represented in these proceedings, which is entirely of his own doing, and I doubt that it would be procedurally fair to him if the Court were to make an order allocating a greater share of the matrimonial assets to the applicant than she sought in her Amended Application filed on 4^th June 2013. The Respondent has been put on notice of the orders the Applicant seeks, and has elected to do nothing to oppose those orders. It is not unreasonable to infer from that fact that he has acquiesced in those orders being made. However, if the Court were to make an order giving to the Applicant a greater share of the assets than she has sought without giving the Respondent any notice that such an order would be made, the Respondent could be said not to have received procedural fairness. A denial of procedural fairness is not just and equitable.

4. Accordingly, I propose to make the Orders sought by the Applicant.

Costs

1. The Applicant seeks an order for costs at paragraph 16 of her Amended Application. What is in fact sought on this occasion is an order, not on an indemnity basis but on a party and party basis, for the sum of $7,249.00, representing costs of the interim proceedings prior to the hearing on three separate occasions and necessary disbursements incurred. The Applicant’s costs were reserved and the Respondent has done nothing to challenge those costs.

2. I am satisfied that the Respondent has been put on notice of the costs sought, even if he is not aware of the amounts prescribed by Schedule 1 to the Federal Circuit Court Rules 2001. The amounts of costs sought are calculated in this way:

   a)Initiating application including interim orders up to first court date on 11^th February 2013 plus daily hearing fee:        $2,765.00

   b)Interim hearing on 5^th March 2013:   $1,932.00

   c)Interim hearing on 2^nd July 2013 (costs reserved):       $1,932.00

   Total  $6,629.00

   d)Disbursements for filing fees:

   i)Initiating application  $305.00

   ii)Application seeking interim orders:                  $105.00

   iii)Application in a Case 4.3.2013:  $105.00

   iv)Application in a Case 25.6.2013:  $105.00

   Total disbursements  $620.00         

3. The total claimed by the Applicant for costs including disbursements up to the interim hearing on 2^nd July 2013 amounts to $7,249.00.

4. The amounts claimed are in accordance with Schedule 1. I am satisfied that the Court should make an order that the Respondent should pay the Applicant’s costs fixed in the sum of $7,249.00.

5. I will allow 28 days to pay.

Undefended Hearing

1. The Application has proceeded as an undefended hearing under Rule 13.03C due to the failure by the Respondent to appear or engage in the Court process. However, the Orders will note that the matter has proceeded in this way and will draw the Respondent’s attention to Rule 16.05, which permits the Court to vary or set aside its judgment or order after it has been entered if (inter alia) the order is made in the absence of a party.

I certify that the preceding eighty-four (84) paragraphs are a true copy of the reasons for judgment of Judge Scarlett

Date:  29 September 2013