Hopkins & Elliott (No 7) - [2024] FedCFamC1F 312

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Hopkins & Elliott (No 7) [2024] FedCFamC1F 312

File number: SYC 5636 of 2021

Judgment of: ALDRIDGE J

Date of judgment: 15 May 2024

Catchwords: FAMILY LAW – PROPERTY – Application for final property orders – Modest asset pool – Repeated failure of the wife to comply with procedural directions – Husband has entered approved restructuring plan with the ATO to reduce his company’s assessed tax liability – ATO debt arises from income that provided benefits to the wife – ATO debt included on balance sheet – Wife seeks to add various assets, add backs and liabilities to the balance sheet – Where company debts and an interest in a property were already taken into account in the business valuations – Where there was no evidence for a number of balance sheet items claimed by the wife – Wife claimed she helped grow the husband’s business – Evidence suggests the wife did no valuable work in the business – Financial support substantially provided by the husband – Limited non-financial contributions made by the wife – Wife has capacity for future employment – Net assets to be divided 20 per cent to the wife and 80 per cent to the husband.
FAMILY LAW – PROPERTY – SPOUSAL MAINTENANCE – Wife sought periodic spousal maintenance – Test for capacity is governed by the word “adequate” – Various claimed expenses cannot be considered required for the wife to support herself adequately – Medical evidence does not prove the wife is incapable of supporting herself adequately – Husband lacks reasonable capacity to pay maintenance – Application dismissed.
FAMILY LAW – PRACTICE AND PROCEDURE – Vexatious proceedings – Husband sought an order declaring the wife a vexatious litigant pursuant to s 102QB of the Family Law Act 1975 (Cth) – Affidavits filed by the wife were not proceedings – Notices of objection to subpoenas fit within definition of a proceeding – Husband fails to explain why the notices of objection were vexatious – Where the wife has brought a number of Applications in a Proceeding, Applications for Review, appeals and Applications in an Appeal – Husband has not established the wife has frequently commenced or conducted vexatious proceedings – Application refused.

Legislation: Family Law Act 1975 (Cth) ss 4, 72, 79, 102Q, 102QB

Cases cited:
Citta Hobart Pty Ltd v Cawthorn (2022) 276 CLR 216; [2022] HCA 16

Elliot & Hopkins (No 2) (2023) FLC 94-157; [2023] FedCFamC1A 142

Hopkins & Elliot (No 6) [2024] FedCFamC1F 116

Kowaliw and Kowaliw (1981) FLC 91-092

NHC & RCH (2004) FLC 93-204; [2004] FamCA 633

Official Trustee in Bankruptcy v Gargan (No 2) [2009] FCA 398

Pencious & Searle (2017) FLC 93-805; [2017] FamCAFC 210

Potier v Attorney General (NSW) (2015) 89 NSWLR 284; [2015] NSWCA 129

Trustee of the Property of G Lemnos, a Bankrupt & Lemnos and Anor (2009) FLC 93-394; [2009] FamCAFC 20

Division: Division 1 First Instance

Number of paragraphs: 196

Date of hearing: 18 and 19 March 2024

Place: Sydney

Counsel for the Applicant: Ms Rusiti

Solicitor for the Applicant: Parker Law

Counsel for the Respondent: Mr Cohen

Solicitor for the Respondent: The Peoples Solicitor
ORDERS

SYC 5636 of 2021

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)

BETWEEN:
MR HOPKINS

Applicant

AND:
MS ELLIOTT

Respondent

ORDER MADE BY:

ALDRIDGE J

DATE OF ORDER:

15 MAY 2024

THE COURT ORDERS THAT:
1.Order 7 of the orders made on 4 April 2022 is discharged.
2.Order 1 of the orders made on 5 March 2024 is discharged.
3.The applicant is at liberty to pay the Australian Taxation Office the sums of $50,540 and $130,000 from the net proceeds of sale of the property at B Street, Suburb C as and when such amounts fall due for payment.
4.Order 2 of the orders made on 5 March 2024 is discharged.
5.The applicant is declared the sole legal and beneficial owner of the following:
(a)The applicant’s motor vehicle registered in the name of D Pty Ltd;
(b)The applicant’s business/es;
(c)The applicant’s bank accounts;
(d)The applicant’s superannuation;
(e)The home contents and effects in the applicant’s possession; and
(f)All items of personalty and realty including but not limited to monies standing to the credit of the applicant in any bank or building society, shareholdings, real property, motor vehicles, entitlements to superannuation and any present or future expectation pursuant to a trust or estate which items may presently be registered in the name of the applicant or in his possession.

6.The applicant, within 28 days of the date of these orders, pay to the respondent $174,842.
7.Each party is solely legally and equitably liable for and indemnifies the other party in respect of any liability in that party’s name, whether solely or jointly with any other person or entity.
8.The balance of the applicant’s Amended Initiating Application filed 7 July 2023 and the balance of the respondent’s Amended Response to Initiating Application filed 27 February 2024 are dismissed.

Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Part XIVB of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish an account of 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 Hopkins & Elliott has been approved pursuant to subsection 114Q(2) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
ALDRIDGE J:
INTRODUCTION

These are property settlement proceedings between Mr Hopkins (“the husband”) and Ms Elliott (“the wife”). The husband contended that the appropriate order would see him retain 85 per cent of the net property to be divided (90 per cent on contributions and 5 per cent for future needs). The wife’s position was that she should receive 80 per cent of a larger pool (50 per cent by way of contributions plus an adjustment of 30 per cent). The wife also sought an order for spousal maintenance. The husband proposed an order pursuant to s 102QB of the Family Law Act 1975 (Cth) (“the Act”) declaring the wife to be a vexatious litigant.
The wife was born in Country V and moved to Australia in 2009, after having received a tertiary qualification from a NSW Institution in 2008. In 2010 the wife commenced tertiary studies at a university, which she completed in 2017.
The husband is a professional and has been practising since 2006. In 2012 he incorporated an entity known as Hopkins Group Pty Ltd (“Hopkins Group”) through which he traded. He later established D Pty Ltd.
There is a dispute between the parties, at least on their respective chronologies provided to the Court, as to when the parties met and commenced cohabitation, but it was in mid-late 2014. They married in 2016.
The parties separated for several months in 2017 before reconciling. They separated on a final basis on 12 February 2021.
The parties were divorced in 2023.
These proceedings were commenced by the husband on 5 August 2021.
As will be discussed in more detail shortly, the hearing of this matter was marked by the repeated failure of the wife to comply with procedural directions. Consequently, at the hearing before me, the wife made several unsuccessful applications to rely on late or incorrectly filed affidavits affirmed by her. As a consequence, the case proceeded largely on the evidence called by the husband.
The other significant feature was the modest amount of the net property to be divided, being $382,059 on the husband’s case and $973,098 on the wife’s case.
The wife’s applications to rely on late served affidavits
Initial trial directions were made by Campton J on 5 September 2023. On 15 November 2023 the matter was placed in the Rolling List with callover on 18 March 2024. Included in the directions made by Rees J on that date were:
2.That each party file and serve any affidavits, including affidavits by experts, upon which he or she seeks to rely, by 4pm on 19 February 2024, noting that each party will be permitted to rely on one affidavit only by him or herself and one affidavit only by each witness, including accountants.
3.That each party file an updated Financial Statement by 4pm on 19 February 2024
…
5.That no further affidavits are to be filed after 19 February 2024 without the leave of the Court first obtained.
…
7.That, unless leave is granted for the filing of further material, this matter will proceed on the evidence filed in accordance with these directions.
Orders 5 and 7 made it abundantly clear that any party not complying with those directions would put themselves in a difficult place at the hearing. Nonetheless, the wife did not comply with them.
On 28 February 2024, the wife filed an Application in a Proceeding seeking some 30 orders, one of which was the vacation of the hearing date. None of the orders sought was an extension of time in which to file and serve evidence or a Financial Statement. That application was determined by Campton J on 5 March 2024 (Hopkins & Elliott (No 6) [2024] FedCFamC1F 116 (“Hopkins (No 6)”)).
His Honour noted at [8] that the proceedings had consumed over 20 listings in the Court, including 11 case management, duty lists and directions hearings before delegated judicial officers, six interim hearings, two enforcement hearings and two completed appeals. They involved a total of 10 Applications in a Proceeding and three applications for review. Those applications are the basis for the husband’s claim under s 102QB of the Act.
Justice Campton noted that there was some degree of urgency about the hearing of the matter which came about in this way.
As I have said, the husband conducted his business through Hopkins Group and since 2015, D Pty Ltd.
By 9 November 2023, D Pty Ltd had an assessed tax liability of $728,958, with very few assets available to meet it (Hopkins (No 6) at [19]). The husband, as the sole shareholder and director, became the object of the attention of the Australian Taxation Office (“ATO”) seeking payment of the debt.
The husband has entered into an approved restructuring plan with the ATO, arrived at with the assistance of his accountant. In short, the effect of that arrangement is that entire debt will be satisfied by a personal payment by the husband as the director of the company in the sum of $130,000.
The husband was the owner of a house at Suburb C which he sold in late 2023 for over $2,000,000. After discharging the mortgage and paying the selling costs, the husband received some $848,050 (Exhibit 5). The sum of $623,444 remains after applying funds to meet his legal costs in these proceedings and the costs of the expert witnesses (Exhibit 5). It is the only asset from which the husband can make the payment of $130,000 to the ATO.
It is obvious that if the agreement with the ATO is not honoured, there is real risk that the husband will become liable by a director penalty notice for the entirety of the tax debt. If that is the case, then there will be precious little left to divide between the parties.
The difficulty, however, is an injunction made by Judge Smith on 4 April 2022 in the following terms:
7.Pursuant to s 114 of the Family Law Act 1975 (Cth), and until further order of the Court, the Applicant Husband is hereby restrained by injunction from refinancing any real property owned by him, or from using any interest in any real property owned by him to pay his debt to the Australian Taxation Office.
Before Campton J, the wife maintained her opposition to the husband paying the tax debt. His Honour declined to discharge the injunction in regards the issues to the parties, saying:
45.The wife submitted that the injunctive order made by Smith J on 4 April 2022 restrained the husband from selling the [Suburb C] property. The husband submitted that no such order was made by Smith J or at any other time over the course of the litigation, and that he had always placed the wife on notice as to his intention to sell the property to rationalise debt and liabilities. At the hearing the wife acknowledged the tenor of the husband’s case over the course of the litigation, but was critical as to his failure to disclose the fact of the sale of the [Suburb C] property and its terms until after that disposal had completed. A finding on these subject matters cannot be made in an abridged summary interlocutory hearing process. Whether the husband was required to dispose of the property to lever himself from his contended financial quagmire will be a matter for trial.
(Emphasis added)
His honour made an order for payments to be made from the funds to each of the parties’ lawyers but restrained the husband from otherwise dealing with the funds.
Accordingly, at the commencement of the hearing, the submission was that the husband could pay the ATO $130,000 to satisfy the debt of $728,958 but was prevented from doing so by the injunction. The effect is that it was in the interests of all parties that the trial came on for hearing at a time whilst the option to satisfy the ATO by a relatively small payment remained available.
That was one of the reasons for declining to vacate the hearing dates, noting that the most likely available hearing dates could be as far as 12 months away.
Justice Campton said of the wife’s attitude towards the proceedings:
30.The torturous history of this proceeding is self-evident. It has been characterised by the wife failing and neglecting to comply with directions and making multiple applications as to the same subject matters. Each party contends the other has failed to comply with their obligations of disclosure. The wife makes many serious allegations, absent current persuasive evidentiary foundation. One is that the husband affected a “fire sale” of the [Suburb C] property for $495,000 less than its market value. The single real property valuer opined that the property had a value of $1.95 million in April 2023. The husband sold it for [over $2 million].
His Honour concluded:
37.The effects of the adjournment of the trial as sought by the wife fails to take into account the notion that parties to a proceeding are not entitled to consume [an] unlimited amount of public resources in the pursuit of their own interests. The wife has not explained why she has delayed in seeking a vacation of the trial until the eleventh hour. The wife ought to be bound by the case she has constructed to this time, including omissions.
In a Case Outline filed on 15 March 2024, the wife announced an intention to rely on an affidavit affirmed by herself sometime prior to or on 27 February 2024.
This affidavit was directed towards the matters raised in the wife’s Application in a Proceeding heard by Campton J rather than the issues posed at the final hearing. The affidavit comprises some 55 pages and purports to exhibit hundreds of pages of further documents. In addition, it is largely inadmissible and predominately takes the form of an extended submission during the course of which some facts might be established.
When the matter came on for hearing on 18 March 2024, the mother was represented by solicitor and counsel. In seeking to rely on the affidavit of 27 February 2024, counsel did not proffer any evidence whatsoever seeking to explain why the orders of Rees J were not complied with, or why no order was sought from Campton J permitting reliance on this affidavit. Counsel merely submitted the obvious – that if the affidavit was not allowed, the wife would be bereft of evidence. Counsel added that this would not be fair.
Compliance with court orders is not optional. Trial directions are not some sort of aspirational guideline or vague invitation. They are orders of the court. That was made more obvious in the present case by the clear direction of Rees J that further affidavits not filed by 19 February 2024 required leave before they could be relied upon and the clear warning to the parties in those orders as to the consequences of non-compliance. The wife is very much the author of her own misfortune.
Fairness is not the sole preserve of the wife – it is a two-way street. It would be unfair on the husband to have to deal with this volume of evidence on the run.
The task is to make the order that best serves the interests of justice, taking into account the competing considerations.
Having done so, those matters, including the absence of evidence of any explanation as to why the orders were not complied with, the absence of any explanation as to why the application to rely on the affidavit was not made until the business day before the hearing and the fact that most of the affidavit appears to be inadmissible on a final hearing, I declined to give the wife leave to rely on it.
By way of a response, counsel then sought leave to rely on an affidavit of the wife filed 15 April 2023. No notice of that intention had been given to the husband and, not surprisingly, his legal representatives did not have a copy readily to hand. The wife was unable to provide them with a copy.
In light of these matters, I directed that by 5.30 pm that day the husband’s representatives be provided with a copy of the affidavit and a list of the paragraphs that were to be relied on and which were in admissible form. Despite that direction, it was not until later the following morning that the husband’s representatives received that list. Only a few paragraphs in the affidavit were identified as being relied upon and nearly all were inadmissible for one reason or another. The very few paragraphs that were admissible were not in dispute. There was therefore no utility in the affidavit, and I refused leave to rely on it.
The wife also sought leave to rely on an affidavit of Mr M affirmed 15 March 2024 and an affidavit of Ms W also of 15 March 2024.
The evidence of Mr M was the subject of discussion before Campton J on 4 March 2024 and the following order was made:
7. For the purposes of the trial listed for the week commencing 18 March 2024:
(a) …
(b)The wife have leave to rely upon the affidavit of [Mr M] filed 27 February 2024, but only to the extent that affidavit does not replicate the affidavit from the same witness filed 19 February 2024, and upon her Amended Response to an Initiating Application filed 27 February 2024…
One wonders why the same application was not made in relation to the wife’s affidavit, but it was not.
The content of the affidavit of Mr M of 15 March 2024 was entirely unrelated to his two earlier affidavits. Both it and the affidavit of Ms W detailed loans that they had purportedly made to the wife, which remained unpaid. If they had been served upon the husband in timely manner it is most likely that subpoenas would have been issued to these deponents for the documents mentioned in their affidavits. Again, no explanation whatsoever was given as to why these affidavits had not
(a)been prepared earlier, or
(b)been raised before Campton J.
Their admission into evidence would have almost certainly resulted in an adjournment of at least part of the hearing.
For these reasons I declined to grant leave.
It followed that the evidence relied upon by the wife at the hearing was her Financial Statement filed 19 February 2024 (counsel did not seek to rely on the version filed on 27 February 2024 as identified in the wife’s case outline), an affidavit of Mr M sworn 17 August 2023 and filed 19 February 2024 (incorrectly identified as filed on 22 February 2024 in the wife’s case outline) and an affidavit of Ms X also filed 19 February 2024 but affirmed 21 January 2022.
The evidence

It follows from the above that there was no evidence-in-chief from the wife other than her Financial Statement. Her counsel was, of course, free to cross-examine the husband and his witnesses and to tender such documents as he wished. However, relatively few documents were tendered. A number of documents were identified by witnesses and marked for identification but were subsequently not tendered by the wife’s counsel. Accordingly, the matter has proceeded largely on the basis of the husband’s evidence, the evidence of the single expert accountant (which was not challenged by any cross-examination) and the relatively small number of exhibits.
PROPERTY
The property to be divided
A joint balance sheet was filed on 18 March 2024. That did not prevent counsel for the wife from requesting to substitute an amended joint balance sheet at the commencement of the hearing (Exhibit 1). It included, most unhelpfully, an asset at an “unknown” value and included a property at Suburb G at a value of $420,000.
The husband’s companies and related loans
The husband’s two companies were valued by an expert account engaged by the husband. That expert concluded that Hopkins Group had a value of $180,266 (Report of Ms L dated 23 February 2024, paragraph 6).
The expert identified D Pty Ltd as having a negative value (Report of Ms L dated 23 February 2024, paragraph 6). Consequently, the husband’s shares in D Pty Ltd have no value and should be reflected in the balance sheet as such.
The wife asserts that D Pty Ltd does indeed have a positive value and seeks to include loans owed to that company by the husband in the sum of $145,663 and $130,000 as assets of the company and therefore of the parties. The expert was not cross-examined as to whether that was the correct approach.
The argument is that the husband failed to include these debts and they should now therefore be taken into account.
In determining the market value of D Pty Ltd, the expert included a director’s loan made by the husband to the company in the sum of $145,663 as an asset. That is precisely the sum that the wife seeks to have included on the balance sheet in addition to the company’s value.
As to the $130,000, the expert said this:
72.The current liabilities also include a combined $668,384 of payables to the ATO. I was instructed that, as of 9 November 2023, this amount reached $728,958.
73.I am instructed that [D Pty Ltd] entered a restructuring plan to deal with this debt. Under this plan, the ATO agreed to remit [D Pty Ltd’s] debt in exchange for a Director’s contribution of $130,000.
74.The table at Schedule A4 assesses the market value of the assets and liabilities owned by [D Pty Ltd].
75.I have assumed the Husband will be able to comply with the restructuring plan, and therefore, I have disregarded the debts to the ATO.
76.The balance sheet for 2023 includes a loan of $15,663 from the Husband. I have increased this loan on the assumption that the husband paid the $130,000 required for the restructure. This loan from the Husband should be included with his assets in the Family Law balance sheets.
(Report of Ms L dated 23 February 2024, Appendix A)
It follows that the $130,000 is included in the $145,663 and it cannot appear as a separate item in the balance sheet, having been taken into account in assessing the value of the company.
The loan, however, is a liability the company owes to the husband. There is no evidence that the husband owes D Pty Ltd anything at all.
It seems that the wife is simply confused about these items.
The Suburb G Property
The property at Suburb G which the wife seeks to include as property of the husband is owned by H Investments Pty Ltd (“H Investments”) as trustee of the H Unit Trust (“the Unit Trust”).
The Hopkins Group owns 14 shares in H Investments and 14 units in the Unit Trust. In order to assist with completion of its purchase of the interests in the units, Hopkins Group needed to borrow funds, and accordingly has a liability under a mortgage to a bank.
As to this property, the expert said:
112.I have summarised the Balance Sheets of [H Investments as trustee for the Unit Trust] for the financial years 2020 to 2023 at Schedule C2.
113.The balance sheet includes a property ([F Street, Suburb G NSW]) with a book value of $2,670,909. I have replaced this book value with its present market value at $3,000,000 as per the valuation report provided by [R Valuers].
114. The balance sheet for 2023 also includes a $1,100,000 loan from NAB.
Valuation of the Trust
115.[H Investments as trustee for the Unit Trust] is currently being supported by the Unit Holders contributions as the rental income is less than the expenses. I have based my valuation on the value of net assets as at 30 June 2023, with the property value provided to me. The increased value of [H Investments as trustee for the Unit Trust] is calculated at Schedule C3 and is [H Investments as trustee for the Unit Trust] is valued by its net assets at $204,568.
Valuation of Investment
116.The Husband holds 14% of the units of [H Investments as trustee for the Unit Trust] through [Hopkins Group Pty Ltd], therefore, the Husband’s interest in the increased value of [H Investments as trustee for the Unit Trust] is valued at $28,639 plus the loan account value at 30 June 2023 of $112,239. This value has been included in the valuation of [Hopkins Group Pty Ltd] at Appendix B.
(Emphasis in original)
(Report of Ms L dated 23 February 2024, Appendix C)
That sum was then applied to the balance sheet of Hopkins Group which, of course, includes the amount owing under the mortgage (see Schedule B3 of the Report of Ms L dated 23 February 2024). Therefore, the value of the interest of Hopkins Group in the Suburb G property has been taken into account.
No submissions were made to identify why a further sum of $420,000 should be added to its value or that of Hopkins Group.
Counsel for the wife did not require the expert for cross-examination. There is, accordingly, no basis whatsoever for including the claimed sum in the balance sheet.
Increase to proceeds of sale of the Suburb C property
The wife sought to increase the amount shown in the balance sheet as the sum currently held as the net proceeds of the sale of the Suburb C property by $224,606. This was said to be because the husband had not provided evidence as to the disposition of these funds. Even if that were so, that could not be a basis for increasing the sum reflecting the amount actually held in the bank, which was unchallenged. Any undisclosed spending or retention would need to be a separate item.
The husband’s evidence explains in detail what happened to the proceeds of the sale of the Suburb C property, part of which he agrees should be added back. There is no basis for the inclusion of the additional sum sought by the wife.
Add backs
The wife claimed the sum of $28,000 should be added back as sums taken from the bank and used to pay barristers and solicitors on 21 February 2024 in addition to other payments made by the husband from this account. When pressed on the submission, counsel for the wife conceded that it was a double up. Nevertheless, there was no evidence provided to support this amount.
The husband conceded that he used $253,106 from the proceeds of the sale of the Suburb C property for personal living expenses and legal fees related to this case. He accepted that it should be added back.
It appears, on its face, that sum includes the $28,000 and no submissions to the contrary were made by counsel for the wife.
The wife also seeks to add back $256,106 as a “Director loan from [D Pty Ltd]”. The notes to this entry say:
The amount of $253,106 should come from husbands share (took out of company for personal use and combination of fine and tax unpaid by husband negligently. Wife has no contribution to creation of this debt. And majority created after separation.
(As per original)
I do not know what this means, and neither the cross-examination of the husband or the submissions made by counsel for the wife enlightened me. It will not be included in the balance sheet.
Liabilities
Despite the husband’s liabilities under the restructuring agreement with the ATO ($130,000 and an additional $50,504 for his personal tax liabilities), counsel for the wife submitted that they should not be included in the balance sheet because they were the husband’s personal liabilities and because the debts arose after separation.
I do not accept either of those submissions. The tax arises from a re-assessment of the husband’s business as it was constituted during currency of the relationship and not from an assessment of its affairs since separation.
It is plain from a letter from the husband’s accountant that the restructuring and re-assessment of tax by the ATO went as far back as 2016 (Exhibit 22). It cannot be described as debt that arose from business activities after separation. The tax debt arises from the very income that provided benefits to the wife. She cannot at the same time receive the benefits of that income without bearing of the tax that should have been paid on it (Trustee of the Property of G Lemnos, a Bankrupt & Lemnos and Anor (2009) FLC 93-394 at [243]).
These amounts will both appear in the balance sheet.
The wife also sought to include her Higher Education Loan Program (“HELP”) debt in the sum of $162,248.62 as a liability of the parties.
There is no evidence that this sum is presently repayable, because the obligation to repay does not arise until a threshold income is received by the wife. For reasons that will appear shortly, the wife made no financial contribution during the relationship at all and neither she nor the husband have received any benefit from the qualifications she had obtained. Whatever benefit from the wife’s studies that will ensue in the future will be to the wife alone. In those circumstances, it is not appropriate to include the HELP debt as a liability of the parties.
There is no evidence that the wife is presently indebted to the ATO, so the claimed amount of $30,999.58 will not be included.
The wife’s asserted obligations to pay legal fees are not the subject of any evidence before the Court, but in any event, unpaid legal fees cannot be included as a liability of the parties (see NHC & RCH (2004) FLC 93-204).
Neither party sought to include as an add back the $30,000 that was paid to each of their lawyers pursuant to the orders of Campton J on 5 March 2024.
The wife seeks to include personal loans from Y Organisation, Mr M and Ms W as liabilities of the parties. There is no evidence of any indebtedness at all, let alone evidence as to why they should be a liability of the parties. Similarly, there is no evidence of storage fees or removalist costs. Accordingly, the balance sheet is as follows (I have omitted items of less than $100):
Balance sheet

OWNERSHIP DESCRIPTION VALUE

ASSETS

Husband K Bank Account #...18 – remaining proceeds of sale of the Suburb C property $623,444

Husband CBA Smart Access Account #...97 $815

Husband CBA NetBank Saver Account #...45 $6,801

Husband Hopkins Group Pty Ltd $180,266

Husband Furniture $1,000

Wife CBA Accounts #...49, #...30, #...54 $254

Wife Motor vehicle $100

TOTAL $812,680

ADD BACKS

Husband Living expenses and legal fees $253,106

TOTAL $253,106

LIABILITIES

Husband Loan from Hopkins Group $39,387

Husband ATO – Hopkins Group $130,000

Husband ATO – personal $50,504

TOTAL $219,891

SUPERANNUATION

Husband $186,769

Wife $2,324

TOTAL $189,093

NET TOTAL ASSETS (including superannuation) $1,034,988

It is important to understand that one quarter of the net assets for division consists of add backs. Add backs are a notional figure for assets that once existed but have since been spent. It follows that the wife’s contention that she receive 80 per cent of the net assets of $1,034,988 cannot be accepted because that would give her more by way of real assets than actually exist.
Contributions
The parties were together in the relationship for some six and a half years. They did not have any children.
The evidence discloses that at the time of commencement of cohabitation, the husband had:
·A property at Suburb Z which he had owned for two years with an estimated equity of $86,200.
·A car worth $32,000.
·Savings of $50,200.
·His business which also had additional savings of about $50,000.
·Superannuation of approximately $48,300.
The wife had a motor vehicle with a value of approximately $18,000.
The wife’s case was that she was a valuable employee of the husband’s business, who helped “grow” that business.
It was not in dispute that the wife attended the husband’s business premises where she had a desk, work email and phone. She also attended approximately 20 meetings with clients (husband’s affidavit filed 19 February 2024, paragraph 143). The wife also received a wage at times from the business, at least from 25 September 2017 to 24 March 2018 in the sum of $53,899.98 as evidenced by wage records and payslips (Exhibit 2).
The husband accepts that similar payments were made from February 2020 to September 2020 (husband’s affidavit filed 19 February 2024, paragraph 130).
The husband claimed JobKeeper for the wife during the COVID-19 pandemic.
The husband states that he did so because he was constantly being “harangued” by the wife (husband’s affidavit filed 19 February 2024, paragraph 138).
In December 2022, the husband notified the ATO that the wife was never an employee, and that JobKeeper was claimed for her in error. The husband was required to repay $19,500 plus $32,294, which he paid by instalments.
The wife relied on the evidence of Mr M who described himself as being in the “[same industry]” (affidavit of Mr M filed 19 February 2024, paragraph 5).
According to Mr M, when he first met the parties in September 2020 the husband said (affidavit of Mr M filed 19 February 2024, paragraph 10–12):
•It was only 6 months after we met and started living together that we decided to get married and start up our [business].
•We started out with just [the wife], myself and an associate.
•[The wife] focuses her attention on the business development side of the practices.
The unchallenged evidence was that the husband was practicing as a professional on his own account before he met the wife.
Mr M also reported comments made by the wife as to her extensive involvement in the business which were not corrected by the husband. I place little weight on them because they conflict with other evidence which I accept as reliable.
Mr M then described subsequent meetings with the wife alone where he engaged her and the practice to collaborate with him on a project near City AA.
That evidence falls short of establishing that the wife provided any services to Mr M. He forwarded some work to her, but his evidence did not go on to state what, if anything, the wife did in response.
Mr BB was employed by D Pty Ltd from 2015 to 2020. Mr BB said that the wife did not “complete any project, business development, administrative or marketing tasks for the company” (affidavit of Mr BB filed 19 February 2024, paragraph 10). She never attended the weekly meeting which all staff were required to attend and she was not allocated any work (affidavit of Mr BB filed 19 February 2024, paragraph 11).
Mr BB’s observation was that when the wife was present in the office she was attending to her own private business and he was just asked to invite her to meetings for work experience.
No reason was advanced as to why this evidence should not be accepted and none was apparent to me. I have no difficulty in placing significant weight on it.
Mr CC has been an employee at Hopkins Group since 2015. He said that he did not see the wife take any role in the company’s business activities except for very basic tasks (affidavit of Mr CC filed 19 February 2024, paragraph 3). He took her to some meetings because she wanted to expose herself to the industry (affidavit of Mr CC filed 19 February 2024, paragraph 5).
Mr CC’s written evidence was that he signed a reference which contained information which was incorrect and deceiving because he “felt pressured to sign it given [his] position in the company and her relationship with [his] Director ([the husband])” (affidavit of Mr CC filed 19 February 2024, paragraph 9).
Although counsel for the wife cross-examined Mr CC, he did not show him the document that he said was signed by him or suggest that its contents were correct.
It is difficult to take that aspect of the matter further, although there may be a shadow cast over the acceptability of Mr CC’s evidence.
In addition to the above evidence, there are other matters to take into account.
The wife was a student for a significant amount of time. She completed two qualifications in 2017 and a qualification in 2019.
The husband’s unchallenged evidence was that the wife’s degree fell short of the requirements to practice as a professional in NSW which demands the completion of a postgraduate qualification.
The company records, as tendered by the wife, show her employment and payment for only the limited period described earlier.
Counsel for the wife did not suggest to the husband in cross-examination that the wife worked on any particular projects or tender any records to that effect.
These matters support the evidence given by the husband and his witnesses.
I am not persuaded that the wife carried out any work of value in the husband’s businesses. Whilst she was ‘paid’ for limited periods that was not for services undertaken in the business.
Of course, if it were as the wife would have it and she was engaged doing productive work for wages, that would not be a contribution to the husband’s business as she would be doing no more than any other employee. A contribution could well be made by the deployment of those wages but there is no evidence that she received a regular wage or as to what she did with it.
It follows that the financial support of the parties has substantially, if not nearly entirely, fallen on the husband.
The husband’s unchallenged evidence was that in May 2017 the wife withdrew $62,000 from his business bank account which has never been repaid.
In late 2017 the husband applied part of the proceeds from an investment in a property at City U which had been sold, to pay $16,000 for the wife to attend an education course and $14,000 towards the wife’s credit cards.
The parties separated on 12 February 2021 when the husband left the Suburb C property. The wife was forcibly evicted from the Suburb C property by the sheriff on 23 July 2023. The husband was obliged to seek an order for vacant possession which was followed by a stay application, two unsuccessful appeals, an enforcement application and a review.
The husband continued to meet the mortgage payments until the Suburb C property was sold in late 2023. He paid the gas and electricity until May 2022.
The financial contributions overwhelmingly favour the husband.
There is no evidence of any particular non-financial contribution by the wife, but the husband accepts that there were some. In her Case Outline, the wife described her contributions only by reference to the husband’s business. She may have cooked and cleaned at times, as did the husband, and assisted with some aspects of the renovation of the Suburb C property.
I assess the husband’s contributions overall as 90 per cent and 10 per cent to the wife.
Future needs
The wife emphasised the importance of the s 79(4) factors in her favour. The wife is not working. She has good academic qualifications but there is no evidence that she has ever been employed. The wife has supported herself via workers compensation payments, which she received for about two years.

The wife tendered consultation notes made by her general practitioner between 7 February 2023 and 29 August 2023 (Exhibit 18). Generally, they record anxiety/depression, financial problems, panic attacks and fatigue.
Reference is made to family violence, but there is an absence of evidence. The husband makes complaints about himself being the victim but, even if accepted, they fall well short of having any relevance in these proceedings.
Most recently, the notes of her general practitioner record the wife not feeling well, being exhausted, “unable to order coffee correctly”, experiencing poor sleep and feeling anxious (Exhibit 18, consultation notes dated 29 August 2023).
The general practitioner provided a “Medical Report” addressed to “Dear Sir/Madam” dated 12 March 2024 (Exhibit 15). The report in its entirety is:
Re: [the wife]
[…] 1981
[The wife] has been attending my practice for many years, since she was a student at [university]
She has the following psychiatric diagnoses.
1.Major depressive disorder with melancholic features.
2.Severe anxiety disorder including panic attacks
3.PTSD (trauma & abuse)
She takes [medication] and regularly sees myself and her psychologist for the above psychiatric conditions.
During severe panic attacks [the wife] will have difficulty communicating & responding to questions. She will freeze and her mind will go blank and cannot communicate effectively. Due to this medical condition she is not able to prepare and present her documents without legal representation. She is suffering from severe fatigue affecting her function, and significantly slows her in every task and activity.
Her body may shake as well […].
I will be organising tests checking her adrenal (stress) glands as she has been experiencing frequent collapse attacks. I’m expecting her to be very low in cortisol.
I have noticed she has deteriorated since I saw her last month. She is exhausted, difficulty standing up, needs to lie down & rest. Her panic attacks and melancholic depression have also worsened. Her psychologist [Ms DD] and myself have noticed that [the wife] has lost a lot of weight and is not eating well. I have given her a letter to attend [hospital].
Sincerely,
[Dr EE]
(Emphasis omitted)
(Exhibit 15)
The doctor does not say who made the psychiatric diagnoses referred to, when they were made or the basis on which they were made.
During the hearing, the wife did not sit behind her lawyers, but rather in the first row of the public gallery. In order to pass notes to her solicitor and counsel and confer with them, which she did frequently (several times per hour), she had to move from her seat, around the edge of the dividing bar and to the bar table in a large courtroom. She had no difficulty in engaging in lengthy discussions with them or in joining with them to search for documents. Whilst appearing stressed, she had no difficulty moving at all and clearly was actively directing her lawyer and counsel.
The form and lack of information and detail in the medical report does not assist with its persuasiveness. It does not address the issue of the wife’s capacity for employment. It is difficult to give it significant weight. The weight is further lessened by my observations just noted.
I take into account that the proceedings have been stressful for the wife, but infer they have also been difficult for the husband. I am not prepared to find that she is incapable of working, even if only after these proceedings have concluded. Having regard to the history of her education, she clearly has the capacity for employment and I am not satisfied that any mental health condition will, after these proceedings are concluded, prevent her from exercising that capacity.
I accept that the net assets are not substantial and that any percentage adjustment has a lesser effect than if the asset pool had been substantial.
The husband asserts that the wife has wantonly reduced the assets available for distribution (Kowaliw and Kowaliw (1981) FLC 91-092) by the conduct of these proceedings; but that is a matter that more appropriately goes to costs rather than the equitable division of property.
The Court must take the evidence as it is. On that basis, an adjustment of 10 per cent ($103,499) in favour of the wife is justified.
Disposition
Twenty per cent of the net assets is $206,998.
The husband has paid the fees for the single expert real property valuer when both parties were ordered to pay half (on 4 February 2022). The wife’s share is $2,750. Costs orders have been made against the wife in these proceedings on 5 June 2023, 29 June 2023 and 23 August 2023, fixed in the sums of $2,000, $5,554 and $19,173.90 respectively. These, with half the single expert real property valuer fees, total $29,478.
A costs order was made in favour of the husband in the Supreme Court of NSW in early 2022. The costs are yet to be assessed and there is no evidence of the likely quantum. That cannot be taken further.
The only means by which these debts are likely to be paid is from the wife’s share of the property division.
The appropriate order therefore is that the wife receive $177,520 from the cash funds held by the husband, less the assets to be retained by her ($2,678), which is $174,842.
The parties will retain the assets in their possession or control. The orders restraining the husband from paying the ATO will be discharged.
I consider these orders to be just and equitable.
MAINTENANCE
In her Case Outline, the wife sought an order for spousal maintenance of $2,000 per week, possibly for a period of five years.
The Court may make an order for spousal maintenance to the extent that a party is unable to support him or herself adequately by reason of age, physical or mental incapacity for appropriate gainful employment or for any other reason (s 72(1)(b) and (c) of the Act).
The wife receives Centrelink benefits and her Financial Statement shows an income of $573.30 per week.
The wife identifies her personal expenditure as $5,697.92 per week. The expenses are ‘supported’ by extensive and discursive notes some of which were obviously written at a different time. For example, Note 13 refers to the wife receiving $957 per week in workers compensation, but those payments were terminated sometime late in 2023. The notes seem to bear no relevance to the item said to be subject to that note. Again, for example, Note 13 is said to support the wife’s claim for house repairs, but the note does not mention them.
Having regard to these matters it is difficult to accord the notes any weight.
There are many other difficulties with the Financial Statement.
There is no evidence as to where the wife is living and the statement includes no expense for rent, but does refer to house repairs ($150 per week), gardening/lawn mowing ($40 per week), cleaning (house/pool) ($40 per week), repairs (furnishings and appliances) ($200 per week) and storage fees ($979 per week).
Some seem unexplained. The wife seeks car expenses of $330 per week. The note indicates that the car is an undrivable wreck but, on one view of her statement, she still uses it. If she has the use of another car, she does not say. Her claim for medical expenses of $500 per week and a further $500 for chemist expenses is not supported by any identified documentation outlining how that sum is made up.
Some, in the absence of evidence, are inexplicable such as the $250 per week for “Assistance to complete forms, paperwork and other daily essential needs”, $100 per week for software, apps and memberships, and $100 per week for “Stationaries refill, print, scan, etc” (wife’s Financial Statement filed 19 February 2024, Part N).
The test for capacity is governed by the use of the word “adequate”. It is difficult to see how all of the following are required by the wife to support herself adequately per week:

Item Amount per week

Clothing and shoes $180

Entertainment/hobbies $180

Holidays $200

Dry cleaning $50

Books and magazines $50

Hairdressing/toiletries $280

Sport $150

Pet expenses $180

Sport clothing $80

Music classes and equipment $90

Laser, beauty, facials and body treatments $280

It is difficult, if not impossible, to identify from this document what sum the wife needs each week to support herself adequately. Any purported calculation would simply be a guess. As the wife bears the onus of proof on this issue, it is a difficulty for her.
I have already expressed some doubts as to the strength of the medical evidence which is the only evidence before the Court on which a finding of incapacity can be made. It does not persuade me on the balance of probabilities that the wife is incapable of supporting herself adequately.
It appears from a perusal of the husband’s Financial Statement that he has a surplus of income over expenses of $404 per week. However, that income includes $200 per week of non-cash benefits from his employment which would limit his ability to pay maintenance of $204 per week (husband’s Financial Statement filed 19 February 2024, Part B Item 2A).
Further, the husband’s income includes interest being earnt on the proceeds of sale of the Suburb C property. He will need to pay $174,842 to the wife and $180,504 to the ATO, which will reduce the principal by more than half. If the interest payable also halves, as is likely, the husband’s income will reduce by $308 per week. He would then have a shortfall each week.
The husband was not cross-examined on his Financial Statement. There can therefore only be a finding that he lacks the reasonable capacity to pay maintenance.
This claim will be dismissed.
SECTION 102QB APPLICATION
As I mentioned earlier, the husband sought an order declaring the wife a vexatious litigant pursuant to s 102QB of the Act.
The principles
Section 102QB of the Act is set out as follows:
102QB Making vexatious proceedings orders
(1)This section applies if a court exercising jurisdiction in proceedings under this Act is satisfied:
(a)a person has frequently instituted or conducted vexatious proceedings in Australian courts or tribunals; or
(b)a person, acting in concert with another person who is subject to a vexatious proceedings order or who is covered by paragraph (a), has instituted or conducted vexatious proceedings in an Australian court or tribunal.
(2)      The court may make any or all of the following orders:
(a)an order staying or dismissing all or part of any proceedings in the court already instituted by the person;
(b)an order prohibiting the person from instituting proceedings, or proceedings of a particular type, under this Act in a court having jurisdiction under this Act;
(c)any other order the court considers appropriate in relation to the person.
Note:Examples of an order under paragraph (c) are an order directing that the person may only file documents by mail, an order to give security for costs and an order for costs.
(3)The court may make a vexatious proceedings order on its own initiative or on the application of any of the following:
(a)       the Attorney‑General of the Commonwealth or of a State or Territory;
(b)       the appropriate court official;
(c)a person against whom another person has instituted or conducted vexatious proceedings;
(d)       a person who has a sufficient interest in the matter.
(4)The court must not make a vexatious proceedings order in relation to a person without hearing the person or giving the person an opportunity of being heard.
(5)      An order made under paragraph (2)(a) or (b) is a final order.
(6)      For the purposes of subsection (1), the court may have regard to:
(a)proceedings instituted (or attempted to be instituted) or conducted in any Australian court or tribunal; and
(b)       orders made by any Australian court or tribunal; and
(c)the person’s overall conduct in proceedings conducted in any Australian court or tribunal (including the person’s compliance with orders made by that court or tribunal);
including proceedings instituted (or attempted to be instituted) or conducted, and orders made, before the commencement of this section.
Therefore, the prerequisite to making an order under that section is for the Court to be satisfied that the person against whom the order is sought “has frequently instituted or conducted vexatious proceedings” (s 102QB(1) of the Act). The provision is analogous to those in other jurisdictions.
The purpose of a vexatious proceedings order is not to punish an individual but rather to protect members of the public from baseless litigation and to safeguard the Court’s limited resources (Official Trustee in Bankruptcy v Gargan (No 2) [2009] FCA 398 (“Gargan”) at [2]–[3]). It is an extreme measure not to be taken lightly.
Vexatious proceedings are defined in s 102Q(1) to include:
(a) proceedings that are an abuse of the process of a court or tribunal; and
(b)proceedings instituted in a court or tribunal to harass or annoy, to cause delay or detriment, or for another wrongful purpose; and
(c)proceedings instituted or pursued in a court or tribunal without reasonable ground; and
(d)proceedings conducted in a court or tribunal in a way so as to harass or annoy, cause delay or detriment, or achieve another wrongful purpose.
In Gargan, Perram J provided the following as qualities that may be suggestive of a vexatious proceeding (at [2]–[12]; adopted by the Full Court in Pencious & Searle (2017) FLC 93-805 (“Pencious”)):
·The commencement of similar proceedings in the same court or in other courts;
·“Habitual and persistent” institution of proceedings;
·Proceedings that are manifestly hopeless or devoid of merit (see also Edelman J in Citta Hobart Pty Ltd v Cawthorn (2022) 276 CLR 216 at [73]–[74]); and
·The repetition of issues that have been determined previously.
“Proceedings” has the meaning given to it by s 4(1) which is:
…a proceeding in a court, whether between parties or not, and includes cross‑proceedings or an incidental proceeding in the course of or in connexion with a proceeding.
“Institute” is also defined by s 102Q(1) and includes, for civil proceedings, “the taking of a step or the making of an application that may be necessary before proceedings can be started against a party”.
The term “frequently” imports a requirement of repetition. The assessment of frequency will depend on the context of the proceedings, although it has been described as a relatively low threshold (Potier v Attorney General (NSW) (2015) 89 NSWLR 284 at [114]; Pencious at [75]).
Ultimately the Court must consider the applications brought by the wife and make an assessment in accordance with the sections and principles above.
Affidavits and objections to subpoenas
The husband submitted that affidavits filed by the wife seeking extensions of time in which to comply with directions and adjournments, and notice of objections to subpoenas were “applications” within the meaning of “institute proceedings” under s 102QB.
However, the effect of the sections set out above are that s 102QB applies where the person is the initiator of the proceedings. I do not see that the filing of an affidavit, even one seeking an adjournment, can be described as such, even though a proceeding includes an incidental proceeding in the course of a proceeding. An affidavit is evidence, not an application or commencement of a proceeding, incidental or otherwise. The relevant application would be any oral application which the affidavit supported.
The filing of a notice of objection to a subpoena instigates an inquiry as to whether all or part of the subpoena should be set aside or where production of documents is sought and production of some or all is opposed. That is something that is incidental to the proceeding in which the subpoenas were issued and accordingly the filing of such a notice fits within the definition of a proceeding for the purpose of s 102QB.
The next requirement is that the application or continuation is vexatious within the definition of “vexatious proceedings” set out above.
The husband refers to five objections to subpoenas which were filed on 19 November 2021. One was struck out by consent and two were dismissed. The remaining two were to be dealt with at the next interim hearing where they were not mentioned. He submits that they were “manifestly hopeless [and] devoid of merit”, but he does not say why that is so.
It is not for the Court itself to seek out the objection to the subpoena and to try to work out for itself the merits of it and whether it could be described as meritless.
Other applications brought by the wife
As noted earlier, the husband left the Suburb C property on 12 February 2021.
In March 2021, the wife lodged a caveat on the title of the Suburb C property claiming an interest pursuant to a partnership agreement and improvements to the property.
These proceedings were commenced by the husband on 5 August 2021.
Orders were made on 4 February 2022 for the appointment of single expert real estate and business valuers.
In early 2022 the wife commenced proceedings in the Supreme Court of NSW seeking the extension of the operation of the caveat and a declaration that she had an equitable interest in the Suburb C property.
Those proceedings were dismissed the following month on the undertaking of the husband not to seek to disturb the wife’s occupation of the Suburb C property pending a further order of the Federal Circuit and Family Court of Australia.
The parties were unable to agree on valuers. The Court fixed the appointment of a single expert real estate valuer on 14 December 2022 and on 31 January 2023, the appointment of a single expert business valuer.
The wife filed an Application for Review on 7 February 2023 and an Application in a Proceeding seeking a stay on 8 February 2023 in relation to the 31 January 2023 orders.
The husband filed an Amended Application in a Proceeding on 24 February 2023 seeking provision of documents to the agency dealing with the wife’s workers compensation claim.
The wife also filed an Amended Application in a Proceeding on 17 March 2023 which sought many orders:
[Not numbered]
The orders made on 31 January 2023 by JR […] be stayed pending further order
My lawyer no longer acts as per today
The affidavit will be provided as soon as possible
The orders made on 27 February 2023 Order 2 stay
[Annexed to the application]
1.All the Orders (excluding order one) made in direction hearing on 31 January 2023 to be reviewed for the reason set out in affidavit
2.Al [sic] the Orders (excluding order one) made in direction hearing on 31 January 2023 to be stayed for the reason set out in affidavit
3.Order two made in the mention on 27 February 2023 to be postponed till after valuation of the assets for the reason set out in affidavit
4.The husband’s response applications filed on 22/02/2023 on be dismissed. The interim and Final orders he is seeking to be quashed.
5.The husband’s applications filed on 29/07/2022 on be dismissed. The interim and Final orders he is seeking to be quashed.
6.All orders made by H H Justice Smith to be complied with including a forensic (audit) investigation and forensic valuation to identify and value undisclosed and disclosed assets.
7.Alternative to orders 1, 2 and 3 above, The current procedural orders made on direction hearing 31 January 2021 to be postponed till after the forensic Audit of the business. Please see the details in part” Regards JR […] orders on 31 January 2023“above.
8.All the current procedural orders made to be postponed till after the forensic Audit of the business and valuation of the properties have been completed.
9.Alternative to two above husband’s applications to be postponed and to be dealt with in a hearing after the forensic Audit of the business and valuation of the properties have been completed,
10.Postponed inspection and valuation of the matrimonial house to be valued after valuation of other assets including valuation of the businesses for the reason set out in affidavit
11.Injunction to be granted that to stop the husband form [sic] encumbering or dealing with in any way with the matrimonial home and [Suburb G] property and any other properties that will be discovered in the process.
12.Authorise the Applicant wife to lodge a caveat to be registered on the title of the matrimonial home and the [Suburb G] property giving notice of injunctions in order above
13.The husband pays for all the cost of caveats for the reasons set out in my affidavit. (Please see the Note-1 below)
14.On urgent bases the husband to provide sufficient funds for reasonable legal cost of the wife till the orders for litigation found be granted.
15.In the alternative to orders above, that the matter to be decided in the next hearing after decisions made in relation to wife’s litigation funds A forensic Audit to be ordered to identify the unknown, known and disposed assets and next immediate stage for valuation of the business
16.Two stage valuation to be ordered that stage one identifying the asset including the undisclosed asset pool by an audit and forensic investigation in to the husband’s commercial and personal financial affairs stage two valuation of the identified assets.
17.That the court grant both property valuer and forensic accountant an unfretted [sic] discovery and access order to any document, information, resources that they may need during their valuation process.
18.The husband to pay $3000 a week Spousal Maintenance to the wife. Funds to be provided from financial resources that he has access for his costs (from companies saving - which has been always primary saving and financial resources during marriage, that he has seen [sic] drawing director loans rather than wage) for reason believable for the wife’s cost of life
19.Alternative to above orders and in the case, husband does not disclose his financial resources and income correctly Orders to be made for release of husband’s superannuation fund to provide those costs stated above,
20.That the husband to be restrained by injunctions from coming to the place of residence of wife till the end of this proceeding including matrimonial home ([B Street, Suburb C])
21.That the husband to be restrained by injunctions from contacting and or approaching the wife or anyone who has a close relationship with the wife under any circumstances, specially 24 hours after consumption of [drugs] or alcohol.
22.That the husband to be restrained by injunctions directly or through other third parties, from abuse, stalking, intimidate, assault, threat, create harm to the wife or anyone who has a close relationship with, until end of this proceeding
23.Any assets have been disposed without the court’s permission to be investigated as a part to the asset pool
24.Urgent Injunction protection for protecting the asset pool.
25.All the known assets held in a trust including unknow [sic] assets assts [sic] that will be discover after forensic audit.
26.The court gives less weight to any documents provided by the applicant and /or his legal representative, cannot court be satisfied those documents are valid; and court to determined [sic] what weight on those or any other documents one of the parties filed, if some of those documents being fabricated by that party.
27.That the husband is solely responsible to pay for all extra cost created by his contravention of order of disclosure in relation to identify the asset pool for valuation of the properties and valuation of the business
28.Orders to be made to stop the husband’s solicitor to interfere with complying the orders made by Judge [S]mith and Eldersh[a]w in relation to providing separate letters to the property valuer and forensic (audit) accountant and frantic investigation of the husband’s personal and commercial ficncail [sic] affairs.
29.based on order made on (15/12/2022) and orders 4 and 5 (4/4/2022) in relation The instruction provided in wife’s separate letter to property valuer for The [Suburb G] property to be consider correctly and the [Suburb G] property to be valued as a DA ready stage (the cost paid by husband’s company) for its value as a development property considering the current Market and not only for its real estate.
30.Orders to be made in ration to access to the information are necessary to the property for valuation of the [Suburb G] property outlined in above order, to be given access to by husband
31.Any extra costs created as the result of provide misleading information and documents by husband to be paid by him.
32.Orders to be made to stop Husband solicitor to interfere with valuers to receive the information they require.
33.Any further procedural or directly order in relation to the valuation of the properties and the businesses to be made in interim hearing considering the whole case.
34.Alternative to above All further the procedural and directional orders to be made after audit forensic (Audit) investigation for identification and valuation of the assets.
35.Further interlocutory orders in relation to the valuation of the property and the business to adjuring to be decided after wife’s application for litigation founds.
36.to be granted a leave for an application for breach of order of disclosure by wife
37.to be granted a leave to lodge an application for smasual malignance
38. to be granted a leave to lodge an application for Audit investigation
39.The Wife to be able to guide and give necessary instructions and information to assist the forensic and property developer for the purpose of the valuation,
40.The [Suburb G] property to be valued for it development investment DA Stage value in the current market, well as the property.
41.Husband provides access to all necessary information and documents to the valuer.
42.and all the orders outlined in the case outline field [sic] on 16 March 2023 in Part B and C
Final order
In the absent of husband’s cooperation to identify the asset pool the court grant orders in final based that wife to receive five million dollar and the full ownership and title of the [Suburb C] house unencumber
(As per original)

These various applications came before Austin J who (orders dated 17 March 2023):
·Set aside Orders 2–8 made on 31 January 2023;
·Ordered the wife to vacate the Suburb C property within one month; and
·Otherwise dismissed various applications for interim relief.
The Amended Application in a Proceeding filed 17 March 2023 was then dismissed by a judicial registrar on 28 March 2023.
The wife filed a Notice of Appeal challenging the order to vacate the property on 5 April 2023 and an Application in a Proceeding seeking a stay of that order on 4 April 2023.
The stay was refused on 17 April 2023.
The appeal was deemed to be abandoned on 3 May 2023 because the wife had failed to file a Draft Appeal Index. On the following day she filed an Application in an Appeal seeking reinstatement of the appeal. On 12 May 2024 the wife then filed another Application in an Appeal seeking expedition of the hearing for reinstatement.
An appeal against the stay refusal was filed on 10 May 2023.
The appeal against the order to vacate the Suburb C property was reinstated on 29 May 2023.
The stay appeal was summarily dismissed on 5 June 2023, with the appeals judicial registrar finding the appeal was “fundamentally and incurably defective” (at [88] of the appeals judicial registrar’s reasons dated 5 June 2023).
On 22 May 2024, the wife filed an Application in a Proceeding seeking to stay the hearing of the husband’s enforcement application, which had been filed on 17 May 2023.
A warrant for possession was issued on that enforcement application on 6 June 2023 and its release was stayed for 14 days. The wife filed an Application in a Proceeding seeking a stay of the orders for the warrant on 16 June 2023. An Application for Review of the orders was then filed by the wife on 19 June 2023.
It is to be recalled at the time the three Applications in a Proceeding and the Application for Review were filed, the orders of Austin J that the wife vacate the Suburb C property remained in force with no stay.
On 23 June 2023, the wife filed an Application in a Proceeding seeking exclusive possession of the Suburb C property despite the issue already having been determined by Austin J. It was, accordingly, an abuse of process.
The application filed on 16 June 2023 was dismissed on 26 June 2023.
The Application for Review filed 19 June 2023 was dismissed by Campton J on 29 June 2023 along with the Application in a Proceeding filed 23 June 2023, and another warrant for possession was issued.
The wife filed an Amended Response to Initiating Application on 14 July 2023 again seeking interim orders for the exclusive occupation of the Suburb C property. Not only had the issue of the occupation of the Suburb C property been well settled, this was an attempt to re-litigate that issue and was vexatious and an abuse of process which was compounded by seeking the same relief as the Application filed 23 June 2023.
The wife was evicted from the property on 21 July 2023. The appeal, along with two further Applications in an Appeal, was dismissed on 23 August 2023 (Elliot & Hopkins (No 2) (2023) FLC 94-157).
On 28 February 2024 the wife filed an Application in a Proceeding seeking the following orders:
1.        Leave granted to submit this application.
2.        This application heared [sic] on Urgent basis.
3.        The court orders Forensic Audit assessment of the asset pool.
4.The court orders that the money obtained from the sale of the matrimonial home ([Suburb C] Property) located on [B Street, Suburb C] to be frozen and held by an independent trustee or receiver to eventually distribute the funds.
5.The court orders that the proposed court dates set out in the orders by Rees J on 15 November 2023 be adjourned until further court order or if 5(C) below is granted, at least until that report is complete (6-12 months estimated see annex)
6.Set aside orders/judgments that relied on financial statements by the Respondent (husband) including but not limited to: A) Eviction from matrimonial home (Order 2 made by Austin J on the 17th of March 2023 with reasoning 17-19) (see annex) B) Denial of spousal maintenance as per the judgment of Austin J on the 17th of March 2023 at 35 (see annex) C) Orders made by Rees J on the 15th of November (see annexure 2) be postponed until the forensic audit is completed (6-12 months estimated, see annexure 3). D) All cost orders against the Applicant to be dismissed. E) Any other order that relied on the Respondent (husband)’s financial circumstances, financial statements and affidavits to the Applicants detriment. F) Any other order that the court finds appropriate.
7.The court order the matter to go to an Undefended final hearing in the absent of the Respondent husband.
8.The court considers the Respondent’s documents and submissions to be not reliable, questionable and voided for matters benefiting The Respondent Husband.
9.These orders to be made on an undefended basis, given The Respondent Husband apperant [sic] lying to the court.
10.The Court hereby orders the striking out of substantive relief of the Respondent and to dismiss the Respondent’s any requests or claims for relief from consideration in the legal proceeding.
11.The court orders that, [Mr N] from [O Financial Services] appointed and instructed by the applicant wife (Annex) to perform an audit and forensic investigation on, without hinderance, companies and intertwined personal assets and financial affairs of The Respondent Husband. Total fee paid by the Respondent husband to the wife within 3 days of receiving the invoices.
12.      The court orders unfettered discovery and access for the forensic accountant.
13.That The Respondent Husband pay a minimum of $100,000.00 to precure [sic] [P Lawyers] to be paid in 3 days (See annexure 5) and any further funds within 7 days after the applicant provides the respondent with any invoices in relation to further litigation costs.
14.The Respondent (husband) to pay for suitable accommodation for the Applicant similar to the amount of the mortgage on the MH. The Respondent Husband was paying $7381 per month for the mortgage of the MH (affidavit 8/11/23 at 45-see annexure 4). The Respondent Husband should pay the Applicant that amount (or whatever the court sees fit) to obtain similar accommodation.
15.The Respondent Husband to pay spousal maintenance at $4,000 per week- (or an amount the court sees appropriate) as well as backpay from the judgment made on the 17th of March 2023 by Austin J. -see the -see the annex -husband $480,000 amended income 2023 and $ 520,000 in 2022, the payroll symmetry, director loans 2023and 2021
16.An injunction to be made in relation to protection of the other assets, including but not limited to, the [Suburb G] Property. ([F Street, Suburb G].)
17.The court orders the striking out of the affidavit of [Mr Q] from [R Valuers] and the relevant submissions by Parker Law submitted on 13/02/2024 concerning an old and outdated valuation of both properties, contravening Order 4 issued on 14 November 2023.
18.The court orders that, [Mr T] and or any other associate from [S Valuers] appointed and instructed by the applicant wife (Annex) to perform valuation of the [Suburb G] property without hinderance, with consideration of as is where is in the highest and best used valuation price, under new zoning, impact of new [City U] beach on the value of the property and the Development Application proposal advertised as STCA. [S Valuers] is also to value the [Suburb C] property if the court doesn’t accept the appraisals and the current shadow valuer’s price provided by Applicant (ANNEX). The property valuer’s total fee paid by the Respondent husband to the Applicant Wife within 3 days of receiving the invoices. The Respondent husband to be remembered half, from the Applicant Wife’s final settlement.
19.The Respondent Husband to pay $17,495.00 for the cost of storage and moving acquired as a result of the eviction in 7 days of these orders.
20.The Respondent Husband pays the Applicant’s past and future litigation costs on an indemnity basis.
21.      The applicant to be given leave to issue up to 20 subpoenas.
22.The wife’s share of the asset order by court to be as non-dischargeable in a case of bankruptcy.
23.The Court orders that any asset disposed by The Respondent Husband and any damages done to the asset pool, be considered as part of his share in any settlement.
24.The court orders that the wife’s interest in the asset pool shall be paid as a priority obligation. Such payment shall be effectuated through garnishment, encompassing any and all forms of future earnings, shares, assets, and other financial interests owned or acquired by the husband.
25.The court place a lien or charge on the husband’s property or assets to secure the payment owed to the wife.
26.In the case that the available asset pool is lower than the wife’s share of the asset pool, the court order wage garnishment, whereby a portion of the husband’s wages are withheld and paid directly to the wife until the debt is satisfied.
27.The court orders wage garnishment for any of the above orders to be paid The Respondent Husband
28.The court issue an injunction prohibiting the husband from dissipating or transferring any assets until the debt owed to the wife is paid.
29.The court finds the husband liable for damages to the asset pool from the fire sale of the matrimonial home (see annex). The Applicant wife is therefore to be granted 80% of the estimated $495,000 loss representing the market value and average price in a public auction value of the house -see the annex and the list relevant rules from family law act 1975 (CTH the beginning of the document),
30.The court orders that the Husband’s debts, encompassing all personal or company tax debts and liabilities, shall be considered solely his own responsibility.
31.The court imposes on The Respondent Husband any disciplinary orders including penalties and sanctions as it deems appropriate.
32.The Court hereby orders that any assets disposed of by the Respondent Husband (RH) and any damages inflicted upon the asset pool shall be deemed integral to his share in any settlement. Should the aggregate of these disposals and damages amount to a value lesser than his rightful share, the Respondent is mandated to compensate the deficit to the Applicant wife accordingly.
33.      Any other order that court find appropriate.
(As per original)
The application came before Campton J at hearing on 4 March 2024.
On 5 March 2024, Campton J made the following orders:
1.Pending further order, and until 22 March 2024, the husband be restrained from doing any act or thing to withdraw or deal with the balance of proceeds of sale of the property at [B Street, Suburb C], held in a [K Bank] saver account in his name, number […18], presently in the sum of $620,897, save an except:
(a)To pay to his legal representatives $30,000 to be applied to the costs of these proceedings; and
(b)       To comply with Order 2 hereof.
2.The husband pay directly to solicitors who file a Notice of Address for Service on behalf of the wife in these proceedings, by way of litigation funding of these proceedings, within 24 hours of the said solicitors providing him with a direction in writing pursuant to this order, the sum of $30,000, such sum to be only applied by the wife’s solicitors for work undertaken by them and disbursements incurred for the purposes of these proceedings subsequent to the date of these orders.
3.The wife do all things to provide her solicitors with a sealed copy of these orders and reasons for judgment.
4.The wife’s application to vacate the current trial dates, being over three days in the Rolling List commencing from 18 March 2024, be dismissed.
5.The relief sought by the husband pursuant to s 102QB of the Family Law Act 1975 (Cth) (“the Act”) as contained in paragraphs 3 and 4 of his Response to an Application in a Proceeding filed 1 March 2024, be adjourned to and consolidated with the financial trial listed to commence in the Rolling List in the week commencing 18 March 2024.
6.The wife file and serve any Response to the husband’s relief pursuant to s 102QB of the Act, an affidavit strictly in reply to that relief, on or before 12 March 2024.
7.        For the purposes of the trial listed for the week commencing 18 March 2024:
(a)The husband have leave to rely upon the affidavit of [Ms L] filed 26 February 2024;
(b)The wife have leave to rely upon the affidavit of [Mr M] filed 27 February 2024, but only to the extent that affidavit does not replicate the affidavit from the same witness filed 19 February 2024, and upon her Amended Response to an Initiating Application filed 27 February 2024; and
Both parties are restrained from filing any other affidavit by way of the court portal or otherwise, without leave of the Court.
8.On or before 8 March 2024, the husband shall serve upon the wife a draft joint balance sheet to include all assets, liabilities, superannuation interests and financial resources as he understands to be suggested to be relevant and to include values he understands are alleged by each party.
9.On or before 13 March 2024, the wife shall make any additions to the balance sheet as required to reflect her contra allegations and any values that are agreed (if applicable).
10.Wheresoever controversy exists as to the inclusion of an item or the value of an item a footnote shall be appended to explain the controversy.
11.A final, settled version of the joint collaborative draft balance sheet shall be filed and served by the husband by no later than 14 March 2024.
12.On or before 14 March 2024, each party shall file and serve a Case Outline document and shall include:
(a)       A list of material relied upon; and
(b)A brief chronology listing significant events that are relevant to the issues to be determined by the Court;
(i)A summary of contributions claimed or contended for, and the percentage-based contributions contended for;
(ii)A summary of the relevant s 75(2) factors and the percentage-based adjustment contended for; and
(iii)Any further factors relevant to determining a ‘just and equitable’ division of property.
13.The husband and the wife are to exchange offers of settlement on or before 14 March 2024 and shall do all things to ensure that an offer of settlement remains open for acceptance until the conclusion of the trial;
14.The wife be granted leave to issue no more than 10 subpoena for the production of documents for the purposes of the trial directed to the husband’s accountants or accountants for the entities in which he has an interest, and to any bank or financial institution. Any such subpoena shall be made returnable no later than seven days before the commencement of the trial and documents produced are to be inspected prior to the first day of hearing.
15.Save and except as provided for by these orders, the wife’s Application in a Proceeding filed 28 February 2024 and the husband’s Response to an Application in a Proceeding filed 1 March 2024 are dismissed.
His Honour noted that the affidavit filed on 28 February 2024 was 65 pages in length and exhibited 1482 pages of documents (Hopkins (No 6) at [12]). As to the application, his Honour noted:
13.Orders 3–12, and 14–[33], as sought reproduce what is contained in [final] orders 20–28, 39 (presumably mislabelled, and meant to be 29), 30 – 48 as sought in her Amended Response to an Initiating Application filed 27 February 2024. Many orders as sought are not competent. The scope of the wife’s relief sought refined during the hearing to the following:
(a)       Adjournment of the current trial;
(b)       Injunctions for the preservation of property pending final hearing;
(c)       Litigation funding to permit the wife to instruct:
(i)A forensic accountant to audit and report on the integrity of the published financial statements of the corporate entities of which the husband had an interest and to otherwise investigate and report on the intertwining of the husband’s financial affairs and those corporations; and
(ii)       Lawyers to act on her behalf in the litigation.
(d)To appoint an expert that she would nominate, not being a single expert, to opine as to the value of real property; and
(e)       Leave to issue subpoena to accountants and banks.
The seeking of identical relief to that sought earlier is, in the absence of acceptable explanation, vexatious and oppressive.
The upshot is that the wife has filed one misconceived application, a response found to be vexatious and an application found to be vexatious. I am not persuaded that the husband has established that the wife has frequently commenced or conducted vexatious proceedings. The application will be dismissed.

I certify that the preceding one hundred and ninety-six (196) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Aldridge.
Associate:
Dated: 15 May 2024

File number:	SYC 5636 of 2021
Judgment of:	ALDRIDGE J
Date of judgment:	15 May 2024
Catchwords:	FAMILY LAW – PROPERTY – Application for final property orders – Modest asset pool – Repeated failure of the wife to comply with procedural directions – Husband has entered approved restructuring plan with the ATO to reduce his company’s assessed tax liability – ATO debt arises from income that provided benefits to the wife – ATO debt included on balance sheet – Wife seeks to add various assets, add backs and liabilities to the balance sheet – Where company debts and an interest in a property were already taken into account in the business valuations – Where there was no evidence for a number of balance sheet items claimed by the wife – Wife claimed she helped grow the husband’s business – Evidence suggests the wife did no valuable work in the business – Financial support substantially provided by the husband – Limited non-financial contributions made by the wife – Wife has capacity for future employment – Net assets to be divided 20 per cent to the wife and 80 per cent to the husband. FAMILY LAW – PROPERTY – SPOUSAL MAINTENANCE – Wife sought periodic spousal maintenance – Test for capacity is governed by the word “adequate” – Various claimed expenses cannot be considered required for the wife to support herself adequately – Medical evidence does not prove the wife is incapable of supporting herself adequately – Husband lacks reasonable capacity to pay maintenance – Application dismissed. FAMILY LAW – PRACTICE AND PROCEDURE – Vexatious proceedings – Husband sought an order declaring the wife a vexatious litigant pursuant to s 102QB of the Family Law Act 1975 (Cth) – Affidavits filed by the wife were not proceedings – Notices of objection to subpoenas fit within definition of a proceeding – Husband fails to explain why the notices of objection were vexatious – Where the wife has brought a number of Applications in a Proceeding, Applications for Review, appeals and Applications in an Appeal – Husband has not established the wife has frequently commenced or conducted vexatious proceedings – Application refused.
Legislation:	Family Law Act 1975 (Cth) ss 4, 72, 79, 102Q, 102QB
Cases cited:	Citta Hobart Pty Ltd v Cawthorn (2022) 276 CLR 216; [2022] HCA 16 Elliot & Hopkins (No 2) (2023) FLC 94-157; [2023] FedCFamC1A 142 Hopkins & Elliot (No 6) [2024] FedCFamC1F 116 Kowaliw and Kowaliw (1981) FLC 91-092 NHC & RCH (2004) FLC 93-204; [2004] FamCA 633 Official Trustee in Bankruptcy v Gargan (No 2) [2009] FCA 398 Pencious & Searle (2017) FLC 93-805; [2017] FamCAFC 210 Potier v Attorney General (NSW) (2015) 89 NSWLR 284; [2015] NSWCA 129 Trustee of the Property of G Lemnos, a Bankrupt & Lemnos and Anor (2009) FLC 93-394; [2009] FamCAFC 20
Division:	Division 1 First Instance
Number of paragraphs:	196
Date of hearing:	18 and 19 March 2024
Place:	Sydney
Counsel for the Applicant:	Ms Rusiti
Solicitor for the Applicant:	Parker Law
Counsel for the Respondent:	Mr Cohen
Solicitor for the Respondent:	The Peoples Solicitor

SYC 5636 of 2021
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN:	MR HOPKINS Applicant
AND:	MS ELLIOTT Respondent

ORDER MADE BY:	ALDRIDGE J
DATE OF ORDER:	15 MAY 2024

OWNERSHIP	DESCRIPTION	VALUE
ASSETS
Husband	K Bank Account #...18 – remaining proceeds of sale of the Suburb C property	$623,444
Husband	CBA Smart Access Account #...97	$815
Husband	CBA NetBank Saver Account #...45	$6,801
Husband	Hopkins Group Pty Ltd	$180,266
Husband	Furniture	$1,000
Wife	CBA Accounts #...49, #...30, #...54	$254
Wife	Motor vehicle	$100
TOTAL		$812,680
ADD BACKS
Husband	Living expenses and legal fees	$253,106
TOTAL		$253,106
LIABILITIES
Husband	Loan from Hopkins Group	$39,387
Husband	ATO – Hopkins Group	$130,000
Husband	ATO – personal	$50,504
TOTAL		$219,891
SUPERANNUATION
Husband	$186,769
Wife	$2,324
TOTAL		$189,093
NET TOTAL ASSETS (including superannuation)		$1,034,988

Item	Amount per week
Clothing and shoes	$180
Entertainment/hobbies	$180
Holidays	$200
Dry cleaning	$50
Books and magazines	$50
Hairdressing/toiletries	$280
Sport	$150
Pet expenses	$180
Sport clothing	$80
Music classes and equipment	$90
Laser, beauty, facials and body treatments	$280