Hosking and Hosking

The case of *Hosking and Hosking* involved an application before Moore J of the Family Court of Australia. The primary dispute concerned the division of the parties' assets and liabilities following their separation. A significant element of the proceedings involved a secured creditor, Mr F, to whom the husband owed a substantial sum, and the husband's bankruptcy, which meant his non-superannuation assets had vested in a trustee in bankruptcy.

The court was required to determine the wife's claim for a splitting order against the husband's superannuation entitlement. Additionally, the court needed to give effect to an agreement between the wife and Mr F regarding the satisfaction of his claim against the husband, which involved a specific payment and the potential sale of the parties' jointly held real property. The court also had to consider the impact of the husband's bankruptcy on the distribution of assets.

Moore J reasoned that the parties' contributions to the marriage, up to the date of separation, were to be considered equal. However, the court found that the wife's post-separation contributions, particularly in caring for their youngest child and providing financial support without assistance from the husband, warranted an adjustment in her favour. Given the husband's bankruptcy and the agreement with Mr F, the court determined that recourse to the husband's superannuation was necessary to adequately recognise the wife's contributions. The court applied principles of asset division under the *Family Law Act 1975*, considering both direct financial and non-financial contributions, as well as section 75(2) factors, although no adjustment was deemed necessary under those factors.

The court ordered that the wife pay Mr F $217,250 by a specified date. Within 14 days, the trustee in bankruptcy and the husband were to transfer their interests in the real property to the wife, with the transfer to be held in escrow until the payment to Mr F. Contemporaneously with this payment, the intervener (Mr F) was to provide a withdrawal of his caveat, and the wife was to indemnify the intervener, trustee, and husband against rates and outgoings. In the event of non-payment by the due date, the property was to be transferred to Mr F for sale, with proceeds applied to costs, encumbrances, Mr F's outstanding claim with interest, and any balance to the wife. The wife was granted sole occupation of the property pending payment or sale, with responsibility for outgoings. The court also made orders for the splitting of the husband's superannuation entitlement, allocating a base amount of $16,930 to the wife. Finally, the court made orders regarding the division of other assets and liabilities, with each party to retain other property in their possession and forego claims to the other's superannuation, save as provided in the orders.