Huber and Ovesen (No.3)
[2019] FCCA 1169
•7 May 2019
FEDERAL CIRCUIT COURT OF AUSTRALIA
| HUBER & OVESEN (No.3) | [2019] FCCA 1169 |
| Catchwords: FAMILY LAW – Property – dispute as to date of commencement of cohabitation – issues with the ability to ascertain values of items in the property pool – delay in obtaining value of self-managed superannuation and involvement of the Australian Taxation Office as to penalties – compliance issues with the wife’s self-managed superannuation fund – credit – failure to call husband’s accountant – non-disclosure issues – valuation of property and superannuation pools – just and equitable orders. |
| Legislation: Family Law Act 1975, ss.4AA, 75, 79 & 81 |
| Cases cited: Stanford v Stanford [2012] HCA 52 Hickey v Hickey & Attorney-General of the Commonwealth (Intervener) (2003) FLC 93-143 |
| Applicant: | MR HUBER |
| Respondent: | MS OVESEN |
| File Number: | SYC 4336 of 2012 |
| Judgment of: | Judge Kemp |
| Hearing dates: | 29 & 30 October 2015, 2 & 3 May 2016, 23 June 2016, 29 March 2018, 22 May 2018, 6 June 2018, 7 September 2018, 21 September 2018 and 4 February 2019. |
| Date of Last Submission: | 4 February 2019 |
| Delivered at: | Sydney |
| Delivered on: | 7 May 2019 |
REPRESENTATION
| Counsel for the Applicant: | Ms Cohen |
| Counsel for the Respondent: | Mr Friedlander |
THE COURT ORDERS THAT:
The parties do all things and sign all documents and authorities reasonably necessary for the monies held in a controlled monies account with Bank FF being account number 1 (“the controlled monies account”) to be disbursed as follows:
(a)81.7% to the husband; and
(b)18.3% to the wife.
The parties do all things and sign all documents and authorities reasonably necessary to cause the funds in the Ms Ovesen Superannuation Fund (“the Ms Ovesen fund”), to be disbursed as follows:
(a)$850.00 plus GST to Mr D in respect of his audit fees to effect the winding up of the Ms Ovesen fund;
(b)$2,500.00 plus GST to Mr B in respect of his accountancy fees to effect the winding up of the Ms Ovesen fund; and
(c)The balance then remaining to be rolled over into an industry fund, being the Y Super Fund (“the Fund”), at the wife’s election.
Paragraphs 4-8 (inclusive) of these orders are binding on the trustee of the Fund.
The base amount of $146,632.81 (or 52% whichever is the greater) of the wife’s member balance of the Fund be then allocated to the husband out of the wife’s interest in the Fund and the parties do all such acts and things and execute all such documents as may be reasonably necessary to facilitate and implement that.
Pursuant to s.90XT(1)(a) of the Family Law Act 1975 (“the Act”), whenever a splittable payment becomes payable in respect of the wife’s interest in the Fund, the husband shall be entitled to receive by payment to the Mr Huber Superannuation Fund (“the Mr Huber fund”) an amount calculated in accordance with Part 6 of the Family Law (Superannuation) Regulations 2001(“the Regulations”) using the base amount and that there be a corresponding reduction to the entitlement the wife would have had in the Fund but for these orders.
Order 5 has effect from the operative time.
The operative time for the purposes of order 6 above, is 4 business days after the date of service of these orders upon the trustee of the Fund.
Until such time as the superannuation split to the husband, pursuant to these orders is effected then:
(a)The wife direct and authorise the trustee of the Fund to communicate with the husband and/or any person authorised by him in writing:
(i)To answer any reasonable enquiries as may be made by him or on his behalf from time to time in relation to his entitlement in the Fund; and
(ii)To provide to the husband and/or his authorised representative with a copy of any notice of any application or request by the wife which seeks the release of entitlements in the Fund insofar as that release may affect the husband’s entitlement in the Fund pursuant to these orders.
(b)The wife by herself, her servants and/or agents be and hereby are restrained from doing any act or thing which would prevent the husband, his heirs, executors, administrators or nominees from receiving the benefits in the Fund to which he is entitled pursuant to these orders.
To the extent that if the husband is recorded as a trustee of the Ms Ovesen fund or the wife is recorded as a trustee of the Mr Huber fund, the parties will each do all things reasonably necessary and sign all documents reasonably required to effect a resignation as trustee in terms of the other parties fund and the appointment of some other person nominated by the other party to be a joint trustee with him or her, if so required.
By consent, that the parties do all things necessary and sign all documents to transfer a Motor Vehicle N to the parties’ daughter, Ms A Ovesen.
The parties forthwith do all things reasonably necessary to cause one half of any M Ltd (“M Ltd”) shareholdings held in the I Bank (“I Bank”) Account No. 2, in the name of the husband and the wife to be transferred to each of the husband and the wife either by the creation of separate accounts with I Bank in the name of each of the husband and the wife or as, otherwise, directed by the parties in writing.
In the event the husband receives any monies (“the settlement sum”) by way of settlement or judgment in the proceedings between O Pty Ltd and the husband as plaintiffs and the H Bank (“H Bank”) and I Bank as defendants in the Court G (proceedings number …), then the husband shall forthwith notify in writing the wife of the settlement sum and that sum (after taking into account the payment of any reasonable costs and disbursements as incurred by the husband in those proceedings), shall be divided 65% to the husband and 35% to the wife. The wife be permitted to provide a copy of this order to the legal representatives of the H Bank and I Bank in the said Court G proceedings.
The husband be declared the owner of the following, to the exclusion of the wife:
(a)His interest in the Mr Huber fund; and
(b)All other assets including bank accounts, vehicles, art works, furnishings and household contents in his possession.
The wife be declared the owner of the following, to the exclusion of the husband:
(a)The property at Street P, Town Q NSW;
(b)Her shareholding in Z Pty Ltd;
(c)Her shareholding in R Pty Ltd;
(d)Her interest in S Pty Ltd;
(e)Her interest in the Ovesen Unit Trust;
(f)Her shareholding in T Pty Ltd; and
(g)All other assets including bank accounts, vehicles, sports equipment, jewellery, art works, furnishings and household contents in her possession.
By consent, in default of either party doing all acts and things and executing all documents to give effect to these orders within 14 days of the date on which the obligation to do so is set under these orders and on the Registrar being satisfied of such failure or neglect or default by way of Affidavit evidence only, a Registrar of this Court is appointed pursuant to s106A of the Family Law Act1975 (Cth) to execute all such documents in the name of the party in default and to do all such acts and things necessary to give validity and operation to the said orders and the party in default shall pay to the other party to such application that partys costs and disbursements on an indemnity basis.
The parties costs (including any earlier reserved costs) be reserved pending determination/assessment.
If any party seeks costs, an appropriate written application may be made within 28 days of today’s date, (supported by any documentary material) to be filed and served within that time period and a copy forwarded to my chambers. The Court will then deal with that matter by way of written submissions, unless the parties wish to be heard orally. If no such application is made within the time period specified, there will be no order as to costs.
All outstanding applications be, otherwise, dismissed.
Subject to orders 16 & 17 above, the matter is, otherwise, removed from the active pending cases list.
IT IS NOTED that publication of this judgment under the pseudonym Huber & Ovesen (No.3) is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYC 4336 of 2012
| MR HUBER |
Applicant
And
| MS OVESEN |
Respondent
REASONS FOR JUDGMENT
Introduction
This is an application by the husband for property orders.
The husband, initially, sought orders, as set out in his Amended Initiating Application filed 21 July 2015 (excluding orders for child support departure), but which were, substantially, to the effect that the property at Street DD, Suburb EE, NSW (“the former matrimonial home”) should be sold with the net proceeds of sale, after payment of the costs of sale, adjustments, repayment of any mortgage, to be paid as to $320,000.00, together with interest on that sum from 1 November 2011 to the date of repayment, to his superannuation fund, being the Mr Huber Superannuation Fund (“the Mr Huber fund”) and with the balance of $700,000.00 to be paid to him and with any final balance to the wife. The former matrimonial home had an agreed value of $2,000,000.00 less an agreed mortgage debt of $1,300,000.00 which would have given rise to an equity of $700,000.00 and, accordingly, therefore, with nothing likely to be paid to the wife out of that balance, notwithstanding the husband’s proposal, that she be paid the balance sum. The husband also sought spousal maintenance from the wife of $36,000.00 per annum by way of monthly instalments of $3,000.00 and that, otherwise, each party be declared to be the absolute owner of all other property in their possession, custody or control. Consequential orders were also sought for each party to be removed as the relevant trustee of the other’s superannuation fund. The husband sought costs on an indemnity basis together with his costs in respect of a contravention application filed on 20 June 2013 and in respect of the wife’s application in a case filed on 2 September 2013, which was withdrawn and dismissed on 25 August 2014.
The Court notes, however, that the husband’s latest proposal now seeks the relief set out in paragraph 24 below.
The respondent wife, on the other hand, sought to, initially, retain the former matrimonial home. It was not until 2 May 2016, that the wife considered, realistically, that that option was no longer available to her. Accordingly, interim orders (see paragraph 19(c) below) were then made for the sale of the former matrimonial home. Her proposal then sought that the net proceeds of sale of the former matrimonial home be divided 60% to her and 40% to the husband, after payment of a number of asserted debts including personal loans in her name with the H Bank (“ H Bank”), UU Bank (“UU Bank Visa”), and for the payment of any fines levied by the Australian Taxation Office (“ATO”) in respect of any non-compliance by or on behalf of the wife in terms of the conduct of her own superannuation fund, being the Ms Ovesen Superannuation Fund (“the Ms Ovesen fund”) and with respect to the wife’s asserted contributions made to the Mr Huber fund. The wife also sought that 50% of the M Ltd (“M Ltd”) shareholdings, currently held with I Bank (“I Bank”) in Account No. 2 be transferred to her superannuation fund with the remaining 50% to be transferred to the husband or as he directed. Otherwise, the wife, substantially, agreed that each party’s other property and assets should remain the property of that party. The wife also sought an order for costs.
The Court notes, however, that the wife’s latest proposal now seeks the relief set out in paragraph 22 below.
The husband relied, subject to all proper claims as to admissibility and after formal objections were taken, on the following:
a)His Affidavit sworn on 6 October 2015 and filed on 7 October 2015;
b)His Statement of Financial Circumstances sworn and filed on 9 October 2015;
c)Affidavit of Ms NN (“Ms NN”) sworn on 25 September 2015 and filed on 7 October 2015;
d)Affidavit of Dr OO (“Dr OO”) sworn on 29 September 2015 and filed on 7 October 2015.
e)Affidavit of Mr WW (“Mr WW”) sworn on 2 December 2012 and filed on 3 December 2012, in the now concluded parenting proceedings;
f)Affidavit of Ms XX (“Ms XX”) affirmed on 7 December 2012 and filed on 10 December 2012, also in the concluded parenting proceedings;
g)His affidavit sworn on 20 August 2018 and filed on 22 August 2018;
h)His two (2) affidavits sworn and filed on 14 September 2018;
i)His further Statement of Financial Circumstances sworn on 14 September 2018 and filed in Court on 21 September 2018; and
j)Affidavit of Mr D (“Mr D”) sworn on 9 April 2018 and filed on 11 April 2018 (attaching as Annexure “1” a spreadsheet in terms of the contributions received and loan account movements for the Ms Ovesen fund between 2009 and 2017).
The wife relied, subject to all proper claims as to admissibility and after formal objections were taken, on the following:
a)Her Affidavit sworn on 15 October 2015 and filed on 16 October 2015 (which included a copy of an affidavit by Mr U (“Mr U”) of 24 August 2012 prepared on behalf of the husband but which was not, directly, relied upon by him);
b)Her Statement of Financial Circumstances sworn and filed on 20 October 2015;
c)Her Affidavit sworn and filed on 27 October 2015;
d)Her Affidavit sworn on 28 April 2016 and filed on 29 April 2016;
e)Her Affidavit by way of disclosure sworn and filed on 29 April 2016;
f)Her Affidavit sworn and filed on 27 May 2016;
g)Her proof of evidence, being Exhibit “30”;
h)Affidavit of Mr B (“Mr B”) (the wife’s forensic accountant) sworn on 27 October 2015 and filed on 28 October 2015.
i)Her Affidavit sworn and filed on 27 October 2017;
j)Affidavit of Mr D sworn on 5 March 2018 and filed on 6 March 2018;
k)Her Affidavit sworn and filed on 27 March 2018;
l)Her affidavit sworn on 15 May 2018 and filed on 16 May 2018;
m)Her affidavit sworn on 28 May 2018 and filed on 30 May 2018;
n)Her two (2) affidavits sworn on 28 August 2018 and filed on 29 August 2018 and on 3 September 2018;
o)Her affidavit sworn and filed on 12 September 2018;
p)Her Statement of Financial Circumstances sworn and filed on 12 September 2018
q)Her affidavit sworn and filed on 18 September 2018; and
r)Her affidavit sworn and filed on 20 September 2018.
Expert reports were prepared as to the values of the following:
a)The former matrimonial home by Mr YY valuing it at $2,000,000.00;
b)The Mr Huber fund by Mr L (“Mr L”), as the single expert, valuing it at $9,379.93 (in the payment phase); and
c)The Ms Ovesen fund by Mr L, as the single expert, valuing it at “unknown”, as Mr L stated he had not been able to provide a valuation, at that time.
Both parties raised objections to each other’s affidavit material in terms of the material being by way of submission, hearsay, lack of relevance and mere assertion. The Court ruled on some of those specific objections but made it clear that it would consider the balance of the objections in terms of the weight to be afforded to the material so identified as objectionable. Both parties were content with that course given the voluminous affidavit material filed by the parties prepared by them, at times, without any legal assistance.
The following documents were tendered as exhibits in the proceedings:
Exhibit No
Document
Tendered by
Court 1
Joint Balance Sheet
Court
Court 2
ATO tax agent portal for Mr B for the Mr B fund dated 20 September 2018
Court
1
Application for Divorce
Wife
2
Three (3) coloured photographs
Wife
3
Two (2) photographs – one developed by Kodak in 1994 and the other one undated
Wife
4
Postcard (undated) from the husband to the wife
Wife
5
Three (3) photographs taken in 1994 of property and a motor vehicle
Wife
6
Transfer document for $550,000.00 dated 23 April 1991
Wife
7
Seven (7) pages of H Bank statements in respect of a Cash Management Call Account 5 June 2008 – 3 July 2009
Wife
8
AAA Super Fund –2 page document for the period 1 July 1997 – 30 September 1997
Wife
9
Handwritten document – minutes of meeting of Mr Huber fund of 14 May 2008
Wife
10
Two (2) page document of a H Bank Cash Management Account
Wife
11
Letter from L Accountants dated 20 August 2014
Wife
11A
Letter from L Accountants dated 2 May 2016
11. Wife
12
Four (4) documents – I Bank, H Bank Account (Page 1), H Bank Cash Management Account (Page 52) and Transaction summary statement
Wife
13
The Mr Huber fund’s 2011 annual return together with I Bank account holdings year ended 30 June 2011
Wife
14
Husband's H Bank Statement for the period March - June 2015, identifying 3 child support payments
Wife
15
Share certificate in the name of the husband as the record-holder of 390,000 shares in VV Pty Ltd (“VV Pty Ltd”)
Wife
16
Email from the husband to the wife dated 16 March 2011
Wife
17
H Bank Statement for the Ms Ovesen fund for the period July 2008 - September 2008
Wife
18
Proposed minute regarding sale of the former matrimonial home
Wife
19
Email from the husband to the wife dated 23 June 2008
Wife
20
Statement from Employer CCC in respect of a superannuation payment of $8,017.97
Wife
21
Emails between the husband and Mr U dated 4 August 2008 and 8 August 2008
Wife
22
H Bank Cash Management Account statement for the period 4 September 2009 – 3 December 2009 in the name of the husband and the wife – Ms Ovesen fund
Wife
23
Email from the husband to the wife dated 25 February 2010 and reply from the wife to the husband dated 25 February 2010
Wife
24
Document entitled ‘Consent to Appointment as Succeeding Trustees’ on the Letterhead of S Pty Ltd (“S Pty Ltd”) dated 1 July 2008
Wife
25
Letter from Australian Securities Investment Commission (“ASIC”) to the husband dated 5 August 2008
Wife
26
Email from the husband to the wife dated 2 May 2016
Wife
27
Five (5) pages of documents identified by the husband as in his writing in respect of various budgets 28 July to 28 August
Wife
28
Green book as identified by the husband as in his handwriting with the first page entitled ‘Ms Ovesen fund’
Wife
29
H Bank Letter to the wife, (page 1 of 2) dated 11 March 2016
Wife
30
Proof of evidence of the wife
Wife
31
Letter from Mr B to the Court dated 21 June 2016 in respect of both parties’ superannuation funds
Wife
32
Emails from the wife to the husband of 5 April 2016 and attaching financial statements
Wife
33
Five (5) pages of H Bank statement for business online saver account together with a I Bank transaction summary statement
Wife
34
Pages 257-263 (inclusive) being Annexure 74 of the wife’s affidavit of 15 October 2015
Wife
35
DDD Accountants (pages 216-17) being Annexure 59 of the wife’s affidavit of 15 October 2015
Wife
36
Letter from L Accountants being Annexure 64 (pages 228-232) of the wife’s affidavit of 15 October 2015
Wife
37
Annexure 65 (pages 233-234) (ignoring highlighting) of the wife’s affidavit of 15 October 2015
Wife
38
Annexure A10 (pages 66-68) of the wife’s affidavit of 15 October 2015
Wife
39
Annexure A51 (pages 192-193) of the wife’s affidavit of 15 October 2015
Wife
40
Annexure A58 (pages 214-215) of the wife’s affidavit of 15 October 2015
Wife
41
Annexure 67 (pages 235-242) of the wife’s affidavit of 15 October 2015
Wife
42
Minute of proposed order sought by the wife on the resumed hearing on 21 September 2018
Wife
A
Three (3) pages from EEE School dated 5 August 2013, 6 September 2013 and 11 December 2013
Husband
B
Six (6) pages - Director NNNNN Pty Ltd concerning the wife
Husband
C
Wife’s LinkedIn profile of 15 September 2015
Husband
D
Two (2) self-managed superannuation fund annual returns for 2009 and 2010 for the Ms Ovesen fund
Husband
E
Copy of the wife’s notice of assessment of 30 June 2008
Husband
F
Decision of the Social Security Appeals Tribunal dated 12 June 2015
Husband
G
Bundle of correspondence; being pages 6-29 of the wife’s proof of evidence
Husband
H
Letter from Mr J to the husband’s Counsel dated 1 April 2016
Husband
J
Bundle of documents produced by Mr B in relation to the Ms Ovesen fund for 2010, 2011, 2012, 2013, 2014 and 2015
Husband
K
Fifteen (15) of eighteen (18) pages of documents produced by I Bank as a summary for the account of the wife
Husband
L
Bundle of H Bank statements from the Ms Ovesen fund for 30 June 2009 to 30 June 2015 (Business transaction account and online account)
Husband
L1
Bundle of H Bank statements from the Ms Ovesen fund for 30 June 2009 to 30 June 2015 (Business Online saver account)
Husband
M1
H Bank cash management call account in the joint names of the parties
Husband
M2
H Bank account statements for the parties joint streamline account
Husband
N
Document from I Bank to the parties dated 15 February 2005
Husband
O
I Bank sell confirmation together with summary statement 6 April 2009 for the sale of units in H Bank with net sale proceeds of $58,167.71
Husband
P
I Bank sell confirmation invoice statement 4 November 2011 for the sale of 400,000 shares in CC Pty Ltd (“CC Pty Ltd”), with net sale proceeds of $295,504.82
Husband
Q
Three (3) pages of H Bank account listed in S Pty Ltd (pages 149-151)
Husband
R
Two (2) letters from the EEE School dated 5 August 2013 to the husband and from the husband to the EEE School dated 2 November 2013
Husband
S
Two (2) page document of H Bank - authority to operate dated 31 July 2013 for the account in the name of X
Husband
T
H Bank account identification – new account for X
Husband
U
Copy statutory declaration of the wife of 19 September 2014
Husband
V
Two (2) page email dated 4 September 2014 from the wife to Mr FFF re GGG Pty Ltd
Husband
W
Minute of order sought by the husband on the resumed hearing on 21 September 2018
Husband
X
Emails from the husband to Chambers dated 18 October 2018 and 1 November 2018
Husband
On 29 March 2018, the Court received by way of further tender, the following:
Exhibit No
Document
Tendered by
Court 1
Letter from E Super to the trustees of the Ms Ovesen fund dated 26 March 2018
Court
On 22 May 2018, the Court received by way of further tender, the following:
Exhibit No
Document
Tendered by
Court 1
Letter from the ATO to the trustees of the Ms Ovesen fund dated 15 May 2018
Court
On 6 June 2018, the Court received by way of further tender, the following:
Exhibit No
Document
Tendered by
1
Letter from Mr B to Mr Friedlander dated 5 June 2018
Wife
2
Bank FF statement for the controlled monies account dated 31 May 2018
Wife
3
Invoice from Mr B & Associates to the trustees of the Ms Ovesen fund dated 5 April 2018
Wife
4
Invoice from E Super to the trustees of the Ms Ovesen fund dated 29 March 2018
Wife
On 4 February 2019, the Court received by way of further tender, the following:
Exhibit No
Document
Tendered by
Court 1
Email from Ms A Ovesen dated 22 January 2019
Court
Court 2
Minute of proposed hearing arrangement
Court
Court 3
Letter from E Super dated 13 June 2018
Court
Court 4
Invoice from Mr B dated 17 September 2018
Court
The husband has appeared self-represented. The wife has also appeared self-represented. At various times, including for a substantial proportion of the hearing time both had direct access briefs to Counsel. The husband was then represented by Ms Cohen of Counsel and the wife by Mr Friedlander of Counsel.
When one examines the history of this matter as set out below, one reflects on the difficulties that have faced both parties in this litigation. The husband is now aged 76 years and is intelligent and self-focused. He, substantially, blames the wife for the financial position that both parties now find themselves in. He does not trust the wife and believes that she has “stolen” his money and that she continues to fail to disclose her true financial position. He believes that she is attempting to mislead the Court as to her inability to earn any income into the future. While he has utilised the services of Counsel, it is clear from the observed interactions between him and Ms Cohen that Ms Cohen has had enormous difficulties in focusing him on resolving any of the property matters in dispute. In that regard, Ms Cohen may have been captive to her client’s instructions. Similarly, the wife, now aged 55 years, is intelligent and self-focused. She, too, substantially blames the husband for the financial position that the parties are now in. She does not trust him. The wife appears to have also held Mr Friedlander captive in terms of her instructions. Both parties have prepared their own affidavits which are extensive, repetitive, disorganised to an extent and often lacking in any of the subject documents said to be annexed to them and which continued to refer to matters which exposed their ongoing dislike of each other. While the Court is preparing these reasons, the husband has filed a, further, Application in a Case on 21 December 2018 which was given a return date of 4 February 2019. The wife filed a Response to that Application in a Case. Both parties filed further affidavits. Both parties have sought to communicate their positions direct with Chambers. This was pointed out on numerous occasions to be inappropriate but that did not stop the flow of such communications. There is a need to bring finality to this matter, as soon as possible.
While Counsel are creatures of their client’s instructions, they should not simply be their mouthpieces. However, that becomes even more problematic when both parties are intelligent, prepare their own documents and then brief Counsel to appear often, it would seem, at short notice, providing their instructions and acting as “instructing solicitors” directing Counsel through a massive amount of documentation and history. That recipe ends up with Counsel very much forced to adopt a position often “on the run” to try and make sense of the documents filed (often shortly before or on a Court event date) and their client’s changing positions and instructions. Often, both the husband and the wife frustrated with their own Counsel’s efforts would then seek to speak over them or “correct the record” for the benefit of the Court.
Again, when one looks at the history of this matter before the Court, substantial time periods appear to have gone by when things should have been done more efficiently to advance the matter. More than likely, during those time periods, Counsel have had little involvement with their clients and the husband and the wife were left to their own devices in attempting to implement various interim orders made to progress the matter to finalisation at hearing. Both Counsel, at times, submitted that enquiries made of experts and others including officers of the ATO had only been made a day or so prior to their attendance in Court, with a lack of any response and the need for an adjournment, contrary to their clients vocal demands to advance matters forthwith. It is against that background that the Court tries to bring finality to these proceedings. The parties have had access to a depleting pool of funds to enable them to either pay for some legal representation, pay experts to assist them, fund schooling and to fund their ongoing living expenses. Given the depletion of those funds, costly legal expertise appeared to be no longer available to the parties, although some of that representation may have been provided “pro bono”.
The hearing of this matter, initially, commenced on 29 October 2015 and ran for a further 4 days on 30 October 2015, 2 & 3 May 2016 and 23 June 2016. On those and other dates (between them), various orders were made, as follows:
a)On 30 October 2015, the following orders, inter alia, were made:
(1)Consent orders:
1.1That the wife pay to the husband the sum of $25,000.00 by 5 payments of $5,000.00 monthly with the first payment to be made on 22 November 2015 and on the 22nd day of each month thereafter.
1.2Such payments referred to in order 1.1 above to be categorised by the trial judge at final hearing.
1.3That in the event that the wife defaults in any such payment referred to in order 1.1 above, then the parties shall forthwith do all things necessary and sign all documents and pay all monies necessary to place the former matrimonial home for sale by public auction upon the following terms:
a. The auctioneer shall be a real estate agent;
b. The reserve price shall, unless agreed upon by the parties, be as proposed by the Auctioneer;
c. The auction will take place within 3 months of the wife failing to comply within order 1.1.
d. The parties will comply with the directions of the agent to facilitate the sale.
1.4The agent to be nominated by the wife providing a list of 3 real estate agents with the husband to pick one from the list.
b)On 3 November 2015, the following orders and notations were made:
(1)Consent orders that the parties do all things necessary on their respective behalves;
a.To cause Mr B to complete the tax returns for the Ms Ovesen fund for the years from 2011 to 2015 by 15 December 2015.
b.To forthwith deliver to Mr L the single expert in these proceedings:
(i)The latest audited financial statements of the Ms Ovesen fund prepared by Mr B as referred to above, including the investment listing forthwith upon their completion; and,
(ii)The latest tax return for the Ms Ovesen fund prepared by Mr B as referred to above forthwith upon their completion; and,
(iii)In addition to the documents referred to in (i) and (ii) above, transaction listing(s) for the current financial year and any other documents confirming the purchase/sale of investments to the time of delivery of the documentation to Mr L.
(iv)In addition to the above, any other documents &/or information requested by Mr L.
c.Noted that Mr L shall require from 10 to 15 working days to prepare his valuation of the Ms Ovesen fund after receipt of the above documentation, provided that he has no further enquiries to make.
d.Noted that the matter was part heard and Counsel for the wife was not available for the continuation of the hearing herein from 18 January 2016 to 23 February 2016 or 29 February 2016 or 4th and 22nd March 2016.
c)On 2 May 2016, the following orders, inter alia, were made:
(1)By consent, that the wife do all things necessary on her behalf to cause the former matrimonial home to be listed for sale within 28 days of the date of these orders, subject to the following terms and conditions:
a.That the former matrimonial home be listed for sale by public auction with a real estate agent to take place within 3 months of the date of these orders.
b.That a real estate agent be appointed to conduct the auction as agreed between the parties and, if no agreement as to the agent is reached within 7 days, then such agent as is appointed by the President of the Real Estate Institute of NSW.
c.The reserve price shall be that amount agreed upon between the parties and in the absence of agreement for a period in excess of 14 days after appointment of the selling agent the reserve price shall be set by Valuers appointed by the President for the time being of the Australian Property Institute Inc (NSW Division).
d.That the wife have exclusive occupation of the former matrimonial home, pending completion of its sale.
e.That a solicitor be appointed to prepare the contract and act on the sale as agreed and if no agreement as to choice of solicitor is reached within 10 days then such solicitor as is appointed by the President of the Law Society of NSW.
f.That from the net proceeds of sale there be reimbursement to the party who has paid for the costs of any necessary repairs or improvements as recommended in writing by the agent conducting the sale for the purpose of facilitating the said sale and as agreed to by the parties.
g.That from the net proceeds of sale there be paid out the following;
(i)H Bank in respect of all monies secured under the mortgage on the title in order to obtain the discharge of the said mortgage.
(ii)That after payment and/or adjustment of any rates or taxes, legal costs on sale and agents and/or auctioneers expenses, the net proceeds of sale be distributed as to;
1. $50,000.00 to the wife;
2. $50,000.00 to the husband; and
3. The balance to be paid into a controlled monies account in the names of the parties, pending further order of the Court or agreement of the parties.
(2)That pursuant to s.106A of the Family Law Act 1975 (“the Act”) a Registrar be and is hereby authorised to execute any deed or instrument authorised by these orders upon… refusal or default… to do so and to do all acts and things necessary to give validity and operation to the deed or instrument.
(3)Upon settlement of the sale, the husband will withdraw any caveat lodged on the title of the former matrimonial home.
d)On 23 June 2016, the following orders and notations, inter alia, were made:
(1)Leave is granted to the parties to provide a document to Chambers, to be tendered as an exhibit, as to the sale price of the former matrimonial home, if it sells at or prior to any auction.
(2)The husband file and serve any written submissions within 4 weeks of today’s date.
(3)The wife file and serve any written submissions 4 weeks after compliance with order 2 above.
(4)Noted that the parties agree that the sums standing to the balance of the parties’ bank accounts will be excluded from the balance sheet.
(5)Noted that Judgment will be reserved following receipt of all submissions.
Following the conclusion of the hearing on 23 June 2016 and the Court’s receipt of the parties’ final written submissions on 2 November 2016, the Court having favoured the position, then articulated by the wife, made on 10 January 2017, various orders, as set out below, and gave its written reasons which required the parties to, in effect, take steps to make compliant the wife’s then non-compliant Ms Ovesen fund, so that the Court could then determine the parties’ outstanding claims. The Court refers to its written decision, in that regard, as if fully set out herein. The orders made were to the following effect:
(1)The parties do all acts and things and execute all documents reasonably necessary to bring the Ms Ovesen fund into statutory compliance with the Superannuation Industry (Supervision) Act 1993 (Cth) (“the SIS Act”), including, but not limited to:
a.appointing an accountant being Mr B;
b.appointing an auditor as agreed, but failing agreement, as nominated by Mr L;
c.having the said accountant liaise and assist the said auditor to prepare and lodge an auditor’s contravention report with the ATO;
d.approaching the ATO to seek a determination as to:
(i)the necessary mechanism to ensure the Ms Ovesen fund is compliant;
(ii)the calculation of any tax outstanding including penalties and general interest charges applicable; and
(iii)whether the ATO would exercise its discretion to either not apply or to waive any penalties and general interest charges which may have arisen for any non-compliance;
e.complying with any actions as determined by the ATO in terms of (d)(i) above, including taking all steps to establish and ascertain the member’s account for the wife in Mr Huber fund for the period from November 2008 to November 2011 so as to determine the nature of the payment of $320,000.00 made by the wife on 4 November 2011 out of the Mr Huber fund and into the Ms Ovesen fund; and
f.attending to pay to the ATO any sum determined by the ATO to be liable to be paid for the Ms Ovesen fund to be made compliant;
(2)The parties are permitted to access funds (being substantially those received from the net proceeds of sale of the former matrimonial home) held in a controlled monies account with Bank FF for the parties being account number no.1 (“the controlled monies account”) in order to effect payment of any sums determined to be owing by the ATO in terms of order (1)(f) above and to pay the costs of the accountant and the auditor referred to in orders (1)(a) and (1)(b) above.
(3)Upon compliance with order 1 above, the parties cause Mr L to file and serve a valuation report for the Ms Ovesen fund with his costs of doing so to be paid by the parties out of the controlled monies account.
(4)The wife to cause a sealed copy of this order to be served on the ATO and to file an affidavit deposing to compliance with this order 7 days prior to the adjourned date.
(5)The matter be listed on 24 February 2017 at 9.30am for mention.
(6)Leave being granted to the parties to vacate the adjourned date if the report of Mr L was not available by the adjourned date and a further date would be provided to the parties by way of a Chamber’s order.
The Court, when it made the above orders, was certainly anticipating that the parties would, effectively, comply with them and that the matter could, thereafter, be determined relatively swiftly. However, the Court’s expectation was not met. There were numerous, subsequent contested applications, appearances and orders made in terms of the parties seeking the release of funds with continuing efforts to focus the parties on compliance with the above orders. These included the following:
a)On 24 February 2017, the following orders and notations, inter alia, were made:
(1)Omitted.
(2)From the monies held in the controlled monies account the following monies be paid:
a.$62,307.28 to the Child Support Agency (“CSA”);
b.$7,930.00 to Ms HHH (for reimbursement of Term 1 F School tuition fees);
c.$15,860.00 to F School (being for Terms 2 & 3 tuition fees);
d.$50,000.00 to the husband for ongoing legal expenses;
e.$25,000.00 to the husband;
f.$35,000.00 to the wife;
g.Upon production to the Court of a tax invoice from Mr J for an amount in excess of $30,000.00 (including disbursements, if any), the amount of $30,000.00 to Mr J, on behalf of the wife’s legal costs and disbursements.
(3)The ultimate characterisation of the above payments to be determined at final hearing.
(4)Omitted.
(5)Noted the parties agreed to Mr D as the auditor in terms of order 1a made on 10 January 2017, rather than Mr L as the default auditor.
b)On 2 August 2017, the following orders and notations, inter alia, were made:
(1)Orders be made on the wife’s undertaking, as follows:
a.From the controlled monies account, the following payments be made:
(i)$30,000.00 to the husband;
(ii)$30,000.00 to the wife; and
(iii)$12,680.00 to F School for term 4 tuition and boarding fees; and
b.The ultimate characterisation of the above payments is to be determined at final hearing.
(2)The wife provide to the husband and the Court, a copy of any order dismissing the Local Court proceedings in the Downing Centre that were, currently, listed on 22 August 2017.
(3)Omitted.
(4)Noted that order 1(a)(ii) was made on the basis that the wife undertakes to the Court that the sum necessary to pay to JJJ Pty Ltd (in order for proceedings against her and/or the husband to be dismissed) is paid out of the monies.
(5)Noted that Mr Friedlander (with the husband in the room) spoke with Mr B who is preparing the report, who advised he has been ill, but expects his report to be available in 2 to 3 weeks. He, further, estimated that the report would be with the ATO for 2 to 3 weeks and that an estimated $60,000.00 would be payable to the ATO.
(6)Noted that Mr J advised that $821,966.94 stood in the controlled monies account, as at today’s date.
c)On 30 October 2017, the following orders and notations, inter alia, were made:
(1)Omitted.
(2)The husband file and serve any Affidavit in reply, in relation to the wife’s then Application in a Case filed on 7 June 2017, for the release of $20,000.000.
(3)Noted that Mr Friedlander made contact with Mr B, who said that he had completed one (1) tax return, but Mr Friedlander was of the view there were another 4 returns to be completed. Thereafter, the parties were unable to speak to Mr B again, today.
(4)Noted that Mr Friedlander and the husband together spoke with Mr D, the appointed auditor, today. He advised he had recently received communication from Mr B and was expecting all of the material to be sent to him in a week or two. His view was that he had staff available and he would expedite the matter once documents were received. He was hopeful of a response from the ATO within days of documents being lodged.
(5)Noted that if there was no response from the ATO, then, 3 working days prior to the adjourned date, the parties should arrange for Mr D to provide the Court with an Affidavit as to what he is doing, what he has done and what is to be done in order to comply with the orders made on 10 January 2017, so as to make the Ms Ovesen fund compliant.
d)On 1 December 2017, the following orders, inter alia, were made:
(1)The parties do all acts and things reasonably necessary to have released from the controlled monies account the following:
a.The sum of $3,352.07 to be paid to F School, for the balance of the 2017 school fees.
b.The sum of $8,500.00 to the husband for the purpose of provision, by him, to the F School, pending confirmation that the parties have agreed that the child will be enrolled in that school in 2018.
c.The sum of $10,000.00 to the wife.
(2)The ultimate characterisation of the above payments to be determined at final hearing.
(3)Omitted.
(4)Liberty to restore the matter on 3 days’ written notice, if there was any development that would enable the Court to deal with the matter on an earlier date (the matter having been given a further mention date on 26 February 2018).
(5)Leave to vacate the adjourned date, if the reports to the ATO or the ATO’s response were not yet to hand.
e)On 26 February 2018, the following orders, inter alia, were made:
(1)By consent, orders as follows:
a.The auditor, Mr D, file and serve an Affidavit within 7 days of this order, stating:
(i)What actions he has taken in relation to the preparation of his auditor’s report in these proceedings, since 1 December 2017;
(ii)What further information he may still require to complete his auditor’s report; and
(iii)A timeline as to when the audit will be completed and the ATO will likely complete its assessment of the Mr Huber fund and/or the Ms Ovesen fund.
b.The husband and the wife, forthwith, sign and return to Mr D any documents forwarded to them by Mr D, as requested, to complete the auditor’s report.
c.The husband and the wife, forthwith, provide to Mr D any documents or information requested by Mr D in compliance with orders made to date, including but not limited to establishing and ascertaining the member’s account for the wife in the Mr Huber fund.
d.The husband and the wife, forthwith, request that Mr D advise:
(i)The total of the contributions made to the Ms Ovesen fund;
(ii)As to any loans made to the wife and the husband from the Ms Ovesen fund;
(iii)An estimate of the tax (including penalties) due;
(iv)What information and documentation Mr D requires to assist the ATO to establish and ascertain the member’s balance account for the wife in the Mr Huber fund; and
(v)Whether the $320,000.00 rolled over to the Ms Ovesen fund is included in the total of the contributions of the Ms Ovesen fund and the balance in that fund.
f)On 7 March 2018, the allocated mention date of 14 March 2018 was vacated and a further date was given of 29 March 2018 to enable Mr D to provide his auditor’s report by 23 March 2018 (in terms of his evidence) referred to in his affidavit filed on 6 March 2018.
g)On 29 March 2018, the following orders and notations, inter alia, were made:
(1)Omitted.
(2)The parties are to do all things reasonably necessary to arrange for Mr D to attend to give oral evidence as to compliance with the orders made on 10 January 2017, on a date to be arranged in accordance with Mr D’s availability (either personally or via video link from Melbourne).
(3)By consent, the parties do all acts and things reasonably necessary to have released from the controlled monies account the sum of $10,000.00 to each of the husband and the wife. The ultimate characterisation of the same will be decided at final hearing.
(4)Noted that the letter from E Super dated 26 March 2018 (Exhibit “Court 1”) was not a full compliance with the orders of 10 January 2017, as the letter, on its face, referred to further steps Mr D was still to undertake.
h)On 4 May 2018, the matter was listed on 22 May 2018 at 10.00am for the purposes of Mr D giving evidence via video link from the Melbourne Registry.
i)On 22 May 2018, the Court heard evidence from Mr D via the said videolink. He was examined by both the husband and the wife given, at that time, they did not have Counsel instructed to appear for them. Mr D’s evidence is referred to below but the Court notes his particular “warning” given at paragraph 118 below.
j)Further, on 22 May 2018, the following orders, inter alia, were made:
(1)The husband provide to Mr D copies of the Financial Statements and Member Statements for the Mr Huber fund, as well as the approved Auditor’s Reports, for the financial years ended 30 June 2010 to 30 June 2017, within 7 days of today’s date.
(2)The husband provide to Mr D a written authority addressed to each of the auditors who have prepared reports for the Mr Huber fund for the financial years referred to in order 1 above, to release to Mr D, at his written request, the documents referred to in order 1 above, within 7 days of today’s date.
(3)The wife file and serve a short Affidavit attaching any documents and/or deposing to any conversations with the husband evidencing her assertion that the husband is a co-trustee with her in the Ms Ovesen fund, within 7 days of today’s date.
(4)The husband file and serve a short Affidavit attaching any documents and/or deposing to any conversations with the husband evidencing his assertion that he was never a co-trustee with her of the Ms Ovesen fund, within 7 days of compliance with order 3 above.
k)On 6 June 2018, the following orders, inter alia, were made:
(1)Orders 1 & 2 (by consent) be made and orders 4, 5, 7 & 8 (not by consent) be made as follows:
1. That the husband and the wife forthwith do all things and sign all authorities necessary to cause the sum of $315,007.73 to be paid from the controlled monies account into the account of the Ms Ovesen fund.
2. That the husband and the wife be restrained, pending further order from accessing or dealing with any fund or asset of the Ms Ovesen fund.
3. Omitted
4. That the husband and/or the wife forthwith comply with any request by Mr B to provide to him documents and/or information that he may request to complete the finalization of the ATO assessment of the Ms Ovesen fund including the determination of any member balance of the Mr Huber fund.
5. That the husband and the wife forthwith authorise Mr J, solicitor, to make payment to Mr D and Mr B of their outstanding fees in relation to this matter being $35,310.00 in respect of Mr D and $27,940.00 in respect of Mr B.
6. Omitted
7. See order 3 below.
8. That in the event that the ATO has not completed its review of the Ms Ovesen fund and determined the amount of any penalties and interest payable by the said fund by 4.00pm on a date 4 weeks before the listing for final submissions then the parties shall forthwith notify [my] Associate of same.
(2)Within 14 days of today’s date, the parties forward to Chambers any minute of order in terms of the relevant preparation of affidavit evidence or by way of submission timetable for the allocated hearing date confirming whether oral evidence is required or not.
(3)The matter be adjourned to 21 September 2018 at 10.00am for resumed final hearing (estimate 1 day).
l)On 8 August 2018, the following orders and notations, inter alia, were made:
(1)That within 21 days of today’s date, the wife file and serve any further affidavit evidence:
a.as to her contention that the husband has been a joint trustee of the Ms Ovesen fund; and
b.setting out the withdrawals made by her from the Ms Ovesen fund since the date of the parties’ separation, referring to the purpose for each withdrawal and the destination thereof (such evidence to include any documentation indicating that the husband was involved with any such withdrawal); and
c.annexing all share (including in particular the CC Pty Ltd shares) transaction statements (purchase and/or sale) relating to the Ms Ovesen fund since the date of the parties’ separation; and
d.annexing all documentation relating to the purchase and sale of any other asset by the Ms Ovesen fund since the date of the parties’ separation, including documentation in relation to the disposal of any funds received on a sale.
(2)That within 28 days of today’s date, the husband file and serve his affidavit evidence:
a.setting out the facts, matters and circumstances whereby he says that he was not a trustee of the Ms Ovesen fund, including any reply to the wife’s affidavit material; and
b.setting out the withdrawals made by him from the Mr Huber fund since the date of the parties’ separation, referring to the purpose for each withdrawal and the destination thereof (such evidence to include any documentation indicating that the wife was involved with any such withdrawal); and
c.annexing all share transaction statements (purchase and/or sale) relating to the Mr Huber fund since the date of the parties’ separation; and
d.annexing all documentation relating to the purchase and sale of any other asset by the Mr Huber fund since the date of the parties’ separation, including documentation in relation to the disposal of any funds received on a sale.
(3)That the husband produce to the wife within 14 days of this order;
a.all audited financial statements, including taxation returns, balance sheets and profit and loss statements in respect of the Mr Huber fund from 1 July 2007 until 30 June 2012; and
b.all bank statements and share transaction statements in respect of the Mr Huber fund from 1 July 2007 until 30 June 2012; and
c.all audited financial statements, including taxation returns, balance sheets and profit and loss statements in respect of O Pty Ltd (“O Pty Ltd”) or any other entity in which he has a superannuation member entitlement for the years ended 30 June 2012,2013, 2014, 2015 2016 and 2017; and
d.all bank statements and share transaction statements in respect of O Pty Ltd or any other entity in which he has a superannuation member entitlement for the years ended 30 June 2012, 2013, 2014, 2015, 2016 and 2017.
(4)That the husband in compliance with order 1(c) made on 26 February 2018, order 1 made on 22 May 2018 and order 4 made on 6 June 2018, provide to the wife, within 14 days of today’s date, all information and documents, in addition to the documents referred to in order 3 a) and b) above, necessary to ascertain the wife’s member account entitlement in the Mr Huber fund for the period from November 2008 until November 2011.
(5)That in the event that the husband does not fully comply with Orders 3a), 3b) and 4 above, then the wife be permitted to seek to obtain from Mr B, an assessment of her members’ balance in the Mr Huber fund as at November 2011 and to rely upon that assessment.
(6)The wife, prior to 17 August 2018, file and serve an affidavit exhibiting:
a.all tax returns in the possession or power of the wife (including amended returns) submitted to the ATO in relation to the Ms Ovesen fund since the formation of the fund including the financial statements, any resolutions made by the trustees and any Notices of Intent to Claim a deduction for personal contributions; and
b.assessments and contravention Notices received from the ATO in relation to the returns mentioned in a) above; and
c.any auditor’s reports in relation to the returns mentioned in a) above; and,
d.any Notices of Intention to claim a tax deduction for contributions for the returns mentioned in a) above.
(7)The husband, prior to 17 August 2018, file and serve an affidavit exhibiting:
a.all tax returns in the possession or power of the husband (including amended returns) submitted to the ATO in relation to the Mr Huber fund since the formation of the fund including the financial statements, any resolutions made by the trustees and any Notices of Intent to Claim a deduction for personal contributions; and
b.assessments and contravention Notices received from the ATO in relation to the returns mentioned in a) above; and
c.any auditor’s reports in relation to the returns mentioned in a) above; and
d.any Notices of Intention to claim a tax deduction for contributions for the returns mentioned in a) above.
(8)Within 7 days of today’s date, each of the parties provide to the other a written authority addressed to the accountants/auditors of their respective superannuation funds so as to authorise the provision of any documents requested by the other party or the other party’s accountants in respect of those funds.
(9)That the husband and the wife file and serve updated Statement of Financial Circumstances within 35 days of today’s date.
(10)That in the event that the ATO has not completed its review of the Ms Ovesen fund and determined the amount of any penalties and interest payable by 4.00pm 31 August 2018, the parties are to apply to relist the matter forthwith.
(11)The parties arrange for their Counsel to lodge with my Associate any written submissions to be relied upon by no later than 4.00pm 12 September 2018, such written submissions to be in Word format.
(12)The parties arrange for their Counsel to provide my Associate with written certification that there has been compliance with the above directions, such certification to be provided by 4.00pm 12 September 2018.
(13)Noted that the allocation of the hearing date is conditional upon both Counsel certifying compliance with the above directions by 4.00pm 12 September 2018 and the ATO providing a determination in terms of Order 10 above.
m)On 5 September 2018, the following orders and notations, inter alia, were made:
(1)The matter be listed on 7 September 2018 at 12.00 noon.
(2)Noted that my associate has contacted Mr KKK (“Mr KKK”) of the ATO and he will be available by telephone at the above time. The parties will have an opportunity to raise any matters with him as to the position of the ATO.
(3)Mr KKK appeared unaware of any orders previously made in this matter.
n)On 7 September 2018, following the parties and the Court having heard from Mr KKK as to the position of the ATO, the following orders, inter alia, were made:
(1)Within 3 working days, the wife deliver to Ms Cohen the “zip file” of the attachments to her affidavit of 16 August 2018, on USB.
(2)On or before 4.00pm on 18 September 2018:
a.Any assessment in terms of order 5 made on 8 August 2018 is to be provided to the husband;
b.The husband file any Response or Affidavit responsive to the wife’s Application in a Case filed 3 September 2018;
c.The wife file and serve an affidavit setting out the facts matters and circumstances including any costs in implementing the ATO’s recommendation/direction in terms of the ATO’s review anticipated to be given today or Monday (10 September 2018).
(3)Time is extended for the husband to comply with order 2 made on 8 August 2018 to within 7 days from todays’ date.
(4)Noted that the parties will consider a joint Freedom of Information request to the ATO in relation to documents describing who the trustee of the Ms Ovesen fund is.
(5)The wife will forward to Chambers within 3 working days Annexures A & B sworn 28 August 2018 and filed 3 September 2018.
(6)The parties will confer over a mechanism to agree about the value of the wife’s property at Street P, Town Q, NSW (the “Street P, Town Q property”), purchased by her post the parties’ separation.
o)Shortly before the allocated final hearing on 21 September 2018, the wife filed on 3 September 2018 a further Application in a Case seeking urgent interim relief. That application was made returnable on the adjourned hearing date. The wife’s said application sought, inter alia, orders that certain, further, monies be released from the controlled monies account as to $18,052.48 to F School and $10,000.00 each to the husband and the wife with the characterisation of those sums to be determined at final hearing. Further, that order 2 made on 6 June 2018 (as set out in paragraph 21(k) above) be varied to provide for a restraint against the husband and the wife, pending further order, from accessing or dealing with any fund or asset of the Ms Ovesen fund, except for payments to the ATO on Mr B’s authority and for the husband to pay the wife’s costs of that application. The abovementioned application was supported by the wife’s Affidavit sworn on 28 August 2018 and filed on 29 August 2018 (see paragraph 7(n) above).
p)On 21 September 2018, the final hearing concluded and the following, further, orders were made:
(1)Leave be granted to the husband to file in Court his Statement of Financial Circumstances sworn 14 September 2018.
(2)The requirement for the husband to file a Response to the wife’s Application in a Case filed 3 September 2018 is dispensed with. This was the position given that the husband had clearly articulated that he opposed the relief sought by the wife and had filed his own affidavit material responsive to it.
(3)By 4.00pm Monday, 24 September 2018, the husband provide a minute of his orders sought to Chambers and serve the same.
Mr Friedlander had provided written submission on behalf of the wife filed on 20 September 2018. In those submissions, the wife proposed a new minute of order. That minute (now made Exhibit “42”) sought the following orders:
(1)That the husband and the wife forthwith do all things and sign all authorities necessary for the monies in the controlled monies account being the remaining proceeds of sale of the former matrimonial home to be disbursed as follows;
a.$18,052.48 to F Pty Ltd (F School).
b.$5,846.88 being an amount to fully payout UU Bank Visa credit card Account Number 3, held in the name of the wife.
c.$17,071.06 being an amount to fully pay out Bank LLL credit card Account Number 4 held in the name of the wife
d.The balance then remaining;
(i)as to 70% to the wife and,
(ii)as to 30% to the husband
(2)That from the funds contained in the Ms Ovesen fund the husband and the wife forthwith do all things necessary on their respective behalves to cause;
a.$12,950.00 to be paid to Mr B.
b.$14,850.00 to be paid to Mr D.
c.the sum of $850 +GST to Mr D and the sum $2,500 + GST to Mr B, in respect of their audit and accounting fees to effect the winding up of the Ms Ovesen fund.
d.the balance of funds after the payments referred to in (a),(b) and (c) above to be rolled over into an industry fund.
(3)That paragraphs 4-9 (inclusive) of these orders are binding on the Trustee of the Y Super Fund (“the Fund”).
(4)That the base amount of 30% of the member balance of the Fund be allocated to the husband out of the wife’s interest in the Fund.
(5)That, pursuant to Section 90MT(1)(a) of the Act (noting this provision has been subsequently amended to s.90XT(1)(a)) whenever a splittable payment becomes payable in respect of the wife’s interest in the Fund the husband shall be entitled to be paid an amount calculated in accordance with Part 6 of the Family Law (Superannuation) Regulations 2001 (“the Regulations”) using a base amount and that there be a corresponding reduction to the entitlement the wife would have had in the Fund but for these orders.
(6)That order 5 has effect from the operative time.
(7)The operative time for the purposes of order 6 of these orders is four (4) business days after the date of service of these orders upon the Trustee of the Fund.
(8)That until such time as the superannuation split to the husband pursuant to these orders can be rolled over into a separate account to the husband:
a.The wife provide to the husband no less than twenty-eight (28) days’ notice before such time as she elects to retire from and/or take voluntary retirement and/or for any reason accept or become entitled to access in whole or in part her entitlement in the Fund.
b.The wife direct and authorise the Trustee of the Fund to communicate with the husband and/or any person authorised by him in writing:
(i)To answer any reasonable enquiries as may be made by him or on his behalf from time to time in relation to his entitlement in the Fund; and
(ii)To provide to the husband and/or his authorised representative with a copy of any notice of any application or request by the wife which seeks release of entitlements in the Fund insofar as that release may affect the husband’s entitlement in the Fund pursuant to these orders.
c.The wife by herself, her servants and/or agents be and hereby are restrained from doing any act or thing which would prevent the husband, his heirs, executors, administrators or nominees from receiving the benefits in the Fund to which he is entitled pursuant to these orders.
(9)In the event that the superannuation split to the husband pursuant to these orders can be rolled over into a separate account to the husband each of the parties do all such acts and things and execute all such documents as may be necessary to facilitate and to implement that rollover.
(10)That the parties forthwith do all things necessary to cause one half of the M Ltd shareholdings held in I Bank Account no.2 in the account name of the husband and the wife to be rolled over to the Ms Ovesen fund and the remaining one half of the M Ltd shareholding to be transferred to the husband or to such entity as he directs in writing.
(11)That the husband and the wife each be entitled to retain to the exclusion of the other all other assets not otherwise dealt with in these orders including items of personalty and entitlements to superannuation standing in their respective name.
(12)That the husband forthwith do all things necessary and sign all documents necessary to resign as a trustee of the Ms Ovesen fund.
(13)That the wife forthwith do all things necessary and sign all documents necessary to resign as trustee of the Mr Huber fund.
(14)Noted that the monies dispersed to the parties pursuant to interim orders made in this matter have been taken into account in regards to the making of the above orders.
(15)That pursuant to s.106A of the Act a Registrar of this Court be and is hereby authorised to execute any deed or instrument authorised by these orders upon the refusal or default of the husband to do so and to do all acts and things necessary to give validity and operation to the deed or instrument.
(16)That the application of the husband herein be dismissed.
(17)That the husband pay the wife’s costs of and in relation to these proceedings.
The husband had provided his own case summary document filed on 1 June 2018 and written submissions were filed on his behalf on 19 September 2018 prepared by Ms Cohen.
On 24 September 2018, Ms Cohen, for the husband, forwarded a proposed minute of order which updated the relief then sought by him. That minute (now made Exhibit “W”) sought notations, declarations and orders to the following effect:
NOTATIONS THAT:
(1)It is intended by these orders that the husband receive known assets to the value of $761,230.00 which comprise
a.The amount remaining in the Ms Ovesen fund of $267,425.00 (being $315,000.00 less $47,575.00, being funds removed by the wife since 15th June 2018); and
b.The amount remaining in the controlled monies account of $313,805.00 (which includes interest accrued on the account); and
c.The current value of the Mr Huber fund of $15,000.00; and
d.The $165,000.00 received by the husband since the date of the sale of the former matrimonial home.
(2)It is intended by these orders that the wife receive known assets to the value of $525,575.00 which comprise:
a.The $388,000.00 already paid to her from the sale of the former matrimonial home;
b.The $47,575.00 removed from the Ms Ovesen fund since 15th June 2018.
c.Her interest in the Street P, Town Q property of $90,000.00.
(3)It is intended that the amount withdrawn by the wife from the Ms Ovesen fund be a notional asset at a value of $1,493,501.00 although the Court is not aware of its whereabouts.
(4)The total assets in the hands of the wife, therefore amount to $2,019,076.00
(5)If the assets of the parties were divided equally the husband should receive the sum of $1,373,012.00
(6)There should be an order that the wife pay the sum of $611,782.00 to the husband.
(7)Having regard to the delay and extra costs incurred by the husband due to the wife’s delay and complications caused by the wife’s non-disclosure it is submitted that the wife pay the husband’s costs in the sum of $100,000.00 (bearing in mind that the husband’s costs to date are $165,000.00)
DECLARATIONS THAT:
(8)The husband is not and has never been a trustee of the Ms Ovesen fund.
(9)The total assets of the parties ($2,746,023.00), at the date of the hearing, were:
a.The wife’s withdrawals from the Ms Ovesen fund of $1,493,501.00.
b.The negative value of the Ms Ovesen fund by reason of the withdrawals mentioned in (a) above in the sum of $315,000.00 received by Ms Ovesen fund from the controlled monies account less the $47,575.00 removed from the Ms Ovesen fund since 15 June 2018, being $267,425.00.
c.Net proceeds of the sale of the former matrimonial home of $1,147,522.00 less $315,000.00 paid to the Ms Ovesen fund, being $832,522.00.
d.The wife’s equity in the Street P, Town Q property being its purchase price of $487,500.00 less mortgage of $397,600.00, being $90,000.00.
e.The Mr Huber fund of $15,000.00.
f.The $47,575.00 removed from the Ms Ovesen fund since 15 June 2018 by the wife.
(10)The wife be declared the absolute owner of all vehicles, artworks and furnishings owned by the parties at the date of the separation and all other assets now in her possession
(11)The husband be declared the absolute owner of all assets now in the possession of the husband.
(12)The husband be declared the absolute owner of the beneficial interest the Mr Huber fund of $15,000.00.
(13)The $165,000.00 paid from the sale of the former matrimonial home to the husband (which includes the $50,000.00 received by him on the settlement of the sale) be declared to be a partial property settlement paid to the husband.
(14)The $388,000.00 paid from the sale of the house to the wife which includes the $53,000.00 paid to the wife on settlement of the sale be declared to be a partial property settlement paid to the wife.
(15)The $47,575.00 removed from the Ms Ovesen fund since 15 June 2018 be declared to be a partial property settlement to the wife.
ORDERS THAT:
(16)The husband and the wife forthwith do all things and sign all authorities necessary for the monies in the controlled monies account, being the remaining proceeds of sale of the former matrimonial home to be paid to the husband.
DECLARATIONS THAT
(17)The wife is the absolute owner of all monies she has withdrawn from the Ms Ovesen fund.
(18)The wife is the absolute owner of the Street P, Town Q property.
ORDERS THAT
(19)There be a splitting order in relation to the Ms Ovesen fund of 100% to the husband and 0% to the wife and that the parties do all things necessary to roll the assets of the fund to the Mr Huber fund. (That the terms of this order be finalised under the slip rule if the wife advises that the assets of the fund have been transferred to an Industry Fund which will receive the proceeds of the Ms Ovesen fund.)
(20)Pursuant to s.106A of the Act, a Registrar of the Court be and is hereby authorised to execute any deed or instrument authorised by these orders upon the refusal or default of the husband [the wife] to do so and to do all acts and things necessary to give validity and operation to the deed or instrument
(21)The wife pay the sum of $611,782.00 to the husband.
(22)The wife pay part of the husband’s costs of the proceedings in the sum of $100,000.00.
Notwithstanding orders made on 8 August 2018, referred to in paragraph 21(l) above, on 18 October 2018, the husband emailed Chambers, noting that he no longer required a finding from the Court as to whether he was a trustee of the Ms Ovesen fund, noting that he maintained that he had never been one. Further, on 1 November 2018, the husband wrote to inform the Court that the ATO had “removed” his name from being associated in any way with the Ms Ovesen fund. The husband acknowledged, as such, that the ATO records had recorded him to be a trustee of the Ms Ovesen fund, which, he said, had been effected without his knowledge or consent. The emails from the husband on 18 October 2018 and 1 November 2018 will together be made Exhibit “X” (see paragraph 10 above). Notwithstanding the recent action taken by the husband, the fact that the husband, since 2008, when the Ms Ovesen fund was established, did not make any enquiry with the ATO as to how its trustee position was recorded, is of some concern. Certainly, post separation, the husband would have received reports and advices which confirmed his position as a co-trustee and he could have sought to correct that position with the ATO, at a much earlier point in time.
The husband, as said, now says that he does not wish the Court to “waste its time” in making a decision about whether he was a trustee of the Ms Ovesen fund and he has withdrawn his application for a declaration to the effect that he was not such a trustee (see his affidavit sworn and filed on 14 September 2018).
On 4 February 2019, the Court heard a further Application in a Case filed by the husband on 21 December 2018. That application was supported by his 2 affidavits sworn and filed on 20 December 2018 and sworn on 3 February 2019 (handed up in Court on 4 February 2019). That application sought the release of all of the funds in the controlled monies account of $317,000.00 and, further, that the husband be authorised to release documents identified in his application to the H Bank and I Bank, with respect to the proceedings identified in paragraph 31(hhhh), below. Orders enabling the husband to release those identified documents were made, by consent, on 4 February 2019. The husband’s application was based on an urgency to meet the school fees at F School for the child, X, given that there were arreared fees and the child’s commencement of her schooling in 2019 relied on a financial accommodation being reached with the said school. The wife’s response sought orders for the payment out to Mr D of E Super of the sum of $14,850.00 and to Mr B of Mr B of $12,980.00. She also sought that monies be paid to Mr J for the management of the controlled monies account and for the distribution of the balance of the controlled monies account as to 70% to the wife and 30% to the husband. That last matter being by way of final relief.
On 4 February 2019, the Court heard oral evidence from Mr K being the Bursar for the F School. Both parties agreed that the Court could proceed to hear the matter, notwithstanding such an issue concerned the matter proceeding by way of a child support departure application, noting the existence of an administrative assessment in respect of the child, X. The Court, given the urgency of the position, handed down its decision on 8 February 2019. The terms of that decision are incorporated, as if fully set out herein. The upshot of that decision was that orders were made for the release of monies from the controlled monies account, as follows:
(1)$12,980.00 to Mr B of C Solicitors;
(2)$14,850.00 to Mr D of E Super; and
(3)$35,256.88 to F Pty Ltd (being the F School).
The Court’s decision on 8 February 2019 also dealt with the outstanding application of the wife filed on 29 August 2018 (albeit sealed on 3 September 2018) in respect of various payments sought to be made out of the controlled monies account, including monies that were then outstanding to the F School, which formed part of the decision then, currently, reserved in these proceedings.
The Court was of the view that the monies due to the F School should have been paid by the parties’ out of the controlled monies account, given that that account, substantially, arose from the sale proceeds of the former matrimonial home and the parties had jointly effected a decision to enrol, X, at that school, notwithstanding any disagreement between them as to who would be liable for the fees, as the evidence of the Bursar was that the school, itself, regarded both as liable. The funds due to Mr B and Mr D have also been paid out of the controlled monies account in accordance with order 2 made on 10 January 2017. The fees to Mr B and Mr D have arisen as a result of the need for the Ms Ovesen fund to be made compliant and their accounts have been directed to the Ms Ovesen fund. Given that the Court is of the view that ultimately the responsibility for the payment of these fees is a joint responsibility of both the husband and the wife, makes little difference how those funds have been paid and the source of that payment. There has been no evidence in relation to any tax consequences (positive or negative) as to the payments being made from the controlled monies account rather than from the funds of the Ms Ovesen account.
Background facts
The following are the background facts:
a)The husband was born in England in 1942 and is, currently, 76 years of age.
b)The wife was born in 1963 and is, currently, 55 years of age.
c)The husband came to Australia from England in 1961 and became an Australian citizen in 1986.
d)The husband is, currently, retired but, more recently, described his occupation, prior to retirement, as investor.
e)In 1975, the husband married his first wife, Ms NN. They separated in 1989 (although the husband stated “1991” in his affidavit filed on 7 October 2015, but agreed that it was the earlier date of 1989) and were divorced in 2002. The Court relies on the date provided by the husband in his divorce application, being Exhibit “1”, of 1989.
f)In about 1982, the wife commenced her employment as a professional at Employer MMM, employed on a salary of $45,000.00 per annum.
g)In about 1984, the wife was appointed as a Professional of a small company called Employer NNN, acquired by Employer MMM.
h)In about 1986, the wife left the employ of Employer MMM, when she was then earning a salary of $60,000.00 per annum.
i)Between 1986 and 1988, the wife was employed as a Professional with Employer OOO, on a salary of $75,000.00 per annum.
j)In about 1988, the wife became a Professional at a company called Employer PPP, on a salary of $85,000.00 per annum.
k)In about 1989, the husband met the wife, through a work colleague, while on a visit to Sydney when he was, at that time, living and working in Country QQQ. The husband was working for Employer RRR, at that time. The wife maintained that she had first met the husband through mutual friends in around 1986 in Country QQQ when she was, then, returning to Australia after a 4 week holiday in Country AA.
l)In 1991, the husband owned a property at Street SSS, Suburb TTT (“the Suburb TTT property”). He mortgaged this property for, approximately, $180,000.00 to enable Ms NN to purchase an apartment for the purchase price of approximately $150,000.00 and to use the additional sum of $30,000.00 to carry out certain renovations to it. The wife asserted that the husband had told her that this apartment had cost around “two hundred grand with renovations”.
m)In 1986-1992, the wife completed a Degree at University.
n)In 1991/1992, the husband retired from his employment as managing director of Employer RRR (Employer RRR) when he was then aged about 49 years. At that time, the husband had been based in Country QQQ. When he turned 50 years of age, he then withdrew all of his monies in his employer sponsored superannuation scheme.
o)In about 1992, the husband and the wife lived in a 2 bedroom rented apartment at Street UUU, Suburb VVV, NSW (“the Suburb VVV property”). The wife says that, at this time, the parties commenced to live together as husband and wife. The husband disputes that timing and maintained cohabitation commenced in 1995.
p)In about 1992, the husband purchased a property in City WWW, the United Kingdom (“UK”) (“the City WWW, UK property”) with Mr YYY (“Mr YYY”). The husband said that he paid the deposit sum and that Mr YYY met all of the mortgage instalments. This property was “done up” and then sold and the husband and Mr YYY split the profit of £70,000.00 (on the husband’s version) or £50,000.00 (on the wife’s version as she maintained the husband had told her that that was the profit sum). Nothing turns on that difference.
q)In about 1993, the husband sold the Suburb TTT property. The husband asserted that he had sold this property for about $840,000.00 and paid off the mortgage secured on its title of $180,000.00 (referred to in paragraph (l) above, netting, approximately, $660,000.00. In fact, the husband sold this property for $550,000.00, as the relevant transfer (Exhibit “6”) shows and, accordingly, he would have received approximately $370,000.00 after payment of the mortgage of $180,000.00 and after costs of sale of, approximately, $10,000.00, would have likely netted, approximately, $360,000.00. The husband maintained that his figure of $840,000.00 was his “best recall” of something that had happened 20 years ago. The husband refused to acknowledge that his recollection could have been in error given the documentary evidence as to the actual sale price of the property. The transfer document, however, substantially, supported the wife’s evidence as to the conversation that she had had with the husband following the sale of the Suburb TTT property. The wife recalled that the husband had then informed her that, after selling expenses and paying out the mortgage, he had received about $300,000.00 net. This was half of what the husband alleged he had received which was in the order of “over $600,000.00”.
r)In about 1993, the husband purchased another property in the UK being an apartment at Street ZZZ, City AAAA, UK, (“the Street ZZZ, City AAAA, UK property”), with Mr BBBB (“Mr BBBB”). The husband said that he had paid the deposit sum and that Mr BBBB had met all of the mortgage instalments. While Mr BBBB resided at that property, it appeared that, he did not pay the husband any rent. The Street ZZZ, City AAAA, UK property was “done up” during 1994 and then sold in 1997. The husband said that he had received back his deposit monies, plus £40,000.00 profit.
s)The parties cohabitated from about 1995 (on the husband’s version) and from 1992 with a break in 1994 (on the wife’s version), were married in 2007, separated on 1 November 2011 and were divorced on 4 July 2015.
t)The husband did not engage in any formal remunerative employment at any time during the parties’ relationship but was able to generate an income from his investments and used his capital to support the family until the parties’ separation.
u)In about 1995, the parties resided in a leased town house at Suburb TTT, NSW (“the Suburb TTT property”).
v)There are 2 children of the relationship being Ms A Ovesen born in 1995, currently, aged 23 years (“Ms A Ovesen”) and X born in 2002, currently, aged 17 years (“X”).
w)On 1 July 1997, the husband’s superannuation with Super Fund AAA Rollover and Superannuation Fund totalled some $342,359.63 (see Exhibit “8”). This sum had increased to $351,913.64 by 30 September 1997.
x)In about 1997, the husband said that he had invested $50,000.00 in acquiring shares in GG Pty Ltd (“GG Pty Ltd”), a company which was a “start-up” registered in City OOOOO, USA.
y)In 1998, the wife left her employment at Employer PPP and commenced to work at Employer MM as a Professional on a salary of $140,000.00 per annum.
z)In about 1999, the husband said that he sold his shares in GG Pty Ltd for, approximately, US$200,000.00.
aa)In 1999, the wife received an inheritance from her late mother’s estate of $65,555.11. The wife said that this sum or a substantial part of it had been utilised by the husband in the “start-up” of 2 companies, with friends of the husband being, Mr DDDD and Mr EEEE. The husband said that he knew nothing of this at the time but agreed that he did, subsequently, learn of the wife’s inheritance but denied that he had used any of the inheritance monies, as alleged by the wife. The husband conceded that he did invest monies with those named persons and received 390,000 shares in VV Pty Ltd worth, he said now, $nil. FFFF Partnership appeared to have owned 100,000 shares in VV Pty Ltd. The husband maintained that he had nothing to do with FFFF Partnership. The wife said that any balance of her inheritance monies had been used to pay credit card debts and bills in relation to family expenses.
bb)In about late 1999/early 2000, the parties moved to live in a rented apartment at Street PPPPP, Suburb TT, NSW (“the Suburb TT property”). This property was leased in the wife’s sole name.
cc)On 18 March 2000, the wife was appointed the trustee of the Mr Huber fund which had then been operating since about 1999. The husband’s superannuation account in the Mr Huber fund showed a balance of $1,019,090.00 as at 30 October 2000.
dd)Following the birth of X in 2002, the wife took 12 months extended maternity leave.
ee)In about July 2002, the husband commenced to draw down on his superannuation in the Mr Huber fund as he had then turned 60 years and could do so, tax free.
ff)In 2003, the wife began to work for MM Fund from home, after her 12 months extended maternity leave had concluded.
gg)In 2006, the wife left her employment with Employer MM. At that time, she was earning, approximately, $180,000.00 per annum. The wife stated that she had also received bonuses during her employment at Employer MM of some $64,000.00.
hh)In 2006, the wife was “headhunted” and appointed to lead up a department for Employer QQQQQ at a salary of $195,000.00 per annum, with a sign on bonus of $30,000.00 and with a potential to earn a bonus of 100% of her salary.
ii)On 2 July 2007, the husband effected a transfer from the Mr Huber fund’s H Bank account (No. 5), of the sum of $10,000.00 to the EEE School in respect of the school fees for the daughter of Ms GGGG (“Ms GGGG”). The wife said that she believed that only $4,000.00 of this sum had been repaid by Ms GGGG and the balance of $6,000.00 was still outstanding. The husband agreed he had lent $10,000.00 to Ms GGGG, who he said was the wife’s friend, to cover her daughter’s school fees but, he said, that this was at the wife’s request, which the wife denied. No evidence was called from Ms GGGG to ascertain this position.
jj)On 30 July 2007, the wife received a bonus from Employer QQQQQ of $86,288.00.
kk)In January 2008, the wife had some $90,166.88 in superannuation with her Employer MM superannuation fund and $51,042.37 in her LL Super Fund, totalling $141,209.25. These sums were, in February 2008, paid into the Ms Ovesen fund’s H Bank account (No. 6) which had an existing credit balance of $12,179.22 as at 29 January 2008, totalling some $153,388.47.
ll)On 14 May 2008, the wife was admitted as a member of the Mr Huber fund. See a Minute of Meeting of the Mr Huber fund which records a resolution to that effect (Exhibit “9”) signed by both the husband and the wife.
mm)In early 2008, the parties were given notice to vacate the Street PPPPP, Suburb TT property, where they had lived for some 8 to 9 years. However, the parties negotiated an arrangement whereby they were able to stay on at that property until they moved into the former matrimonial home.
nn)In early 2008, the wife said that she had received advice from Mr U, an accountant, who had acted for both the husband and the wife but who had been introduced to the wife by the husband, to set up a trust, with a corporate trustee named after her grandparents, being “S Pty Ltd/S Pty Ltd”. This corporate trustee was registered with ASIC on 30 June 2008 under the name S Pty Ltd. It was then intended that this corporate entity would acquire the former matrimonial home, which the parties would then live in and claim a rent payment through the trust. The husband and the wife were the named directors of that entity. The husband said that he, initially, had agreed with this advice but then considered that this would be “illegal” and had then rejected the advice of Mr U and counselled the wife against it. The wife disputed that the husband had done so.
oo)In about June 2008, the parties then acquired the former matrimonial home purchased for $1,400,000.00 in the wife’s sole name (not in the name of a corporate trustee), with the assistance of a mortgage of between $1,240,000.00 and $1,250,000.00. The deposit of $140,000.00 had been paid as to $125,000.00 by the wife (the husband said she paid $115,000.00) and $15,000.00 by the husband (the husband said he paid $35,000.00 out of the Mr Huber fund). The wife’s figures add up to $140,000.00, being the 10% deposit sum. The husband’s figures added to $150,000.00. The husband, however, maintained that his former wife, Ms NN, had paid approximately $62,400.00 to the Ms Ovesen fund which had then been used to meet stamp duty due on the acquisition of the former matrimonial home. This sum was, subsequently, repaid by the parties in about 2010, partially, (as conceded by the husband), from the wife’s receipt of monies from H Bank and also, as the wife conceded, from the Mr Huber. The sum of $125,000.00 provided by the wife was, in effect, borrowed from the Ms Ovesen fund. The parties appear to accept that a further $26,000.00 was expended in relation to legal expenses and other costs associated with the purchase of the former matrimonial home.
pp)In July 2008, the Ms Ovesen fund consisted of the sums of approximately $141,000.00, referred to in paragraph (kk) above, together with the loan funds from Ms NN referred to in paragraph (oo) above and the sum of $10,000.00 being the existing credit balance for the said fund, totalling about $213,400.00.
qq)In July 2008, the wife ceased work at H Bank. The wife obtained a medical certificate in terms of her then being treated for depression by Dr OO.
rr)On 15 August 2008, the Ms Ovesen fund’s H Bank account (No. 6) was credited by way of a bank transfer with the sums of $26,000.00, $62,400.00 (being the monies received from Ms NN) and $125,000.00, totalling $213,400.00. There was then a withdrawal from that fund, on the same day, of $213,800.00, leaving the fund in credit with $48.01. These funds were used, as said, to fund the purchase of the former matrimonial home.
ss)In 2008, the wife was made redundant from her employment with H Bank and she did not work again until 2009.
tt)In 2009, the wife commenced employment with HHHH Pty Ltd (“HHHH Pty Ltd”) on a salary of $200,000.00 per annum with a 30% of salary potential bonus.
uu)Between June 2009 and June 2010, the husband drew down some $70,889.00 from the bank accounts associated with the Mr Huber fund.
vv)In March 2010, the parties had mortgage and loan expenses of approximately $7,800.00 per month, credit card repayments of $2,000.00 per month and car lease payments of $1,000.00 per month, totalling some $10,800.00 per month. These were, substantially, met out of the wife’s salary. The parties’ other living expenses were in the order of some $6,000.00 to $10,000.00 per month. These other expenses were met, substantially, by way of the husband selling shares in the Mr Huber fund’s share portfolio.
ww)On 12 March 2010, the husband forwarded an email to the wife stating that once the CC Pty Ltd shares which he had acquired in the Mr Huber fund had reached $0.80, he would pay off half the mortgage on the former matrimonial home, “rather than go through stamp duty”. The husband stated: “I would want a contract affirming that I have 50% interest in the house…that the house can be sold at the request of either party… upon sale the profit to be split 50/50…”. This was done as the former matrimonial home had been acquired in the wife’s sole name, as referred to in (oo) above.
xx)On 11 June 2010, an Apprehended Domestic Violence Order (“ADVO”) was made against the husband in the wife’s favour.
yy)Between October 2010 and May 2011, the parties renovated the former matrimonial home. The husband maintained that the expenses of renovation were in the order of $150,000.00 to $160,000.00, including payments made to update the appliances and furnishings. The renovations to the former matrimonial home included the construction of a mini-apartment in the downstairs area of the property.
zz)On 21 November 2010, S Pty Ltd was deregistered by ASIC.
aaa)On 11 March 2011, the wife signed a transfer document which, she said, was done under duress, when she was intoxicated and without any legal advice. This transfer document was to effect a transfer to the husband of a half estate in fee simple in the former matrimonial home. The transfer formed the basis for the husband’s claimed entitlement to lodge, on 25 July 2012, a caveat against the title to the former matrimonial home (see Annexure “A22” to the wife’s affidavit filed 16 October 2015). A copy of the transfer document appears at Annexure “A47” to the wife’s said affidavit. The copy so annexed is difficult to read. No consideration appears to have been inserted and the same witness has signed with respect to both the husband’s and the wife’s signatures. That witness being Mr JJJJ. There is no evidence of any payment of stamp duty in terms of the husband asserting that this was an enforceable transfer document. Indeed, the husband’s position as set out in (ww) above, was not to pay any stamp duty.
bbb)On 16 March 2011, the wife forwarded to Mr JJJJ a notice of her decision to rescind the agreement to transfer referred to in (aaa) above.
ccc)On 1 July 2011, the Ms Ovesen fund had an opening balance of $181,744.21, being monies owed to it by the husband and the wife. Of this sum, $125,000.00 appeared to relate to the payment of part of the deposit sum on the former matrimonial home, as referred to in (rr), above, which the Court accepts was the sum paid on behalf of the wife.
ddd)On 31 October 2011, the Mr Huber fund held 909,500 shares in CC Pty Ltd. On that same day, the wife sold a first parcel of 400,000 of these shares for $296,959.75 and then a second parcel of 15,000 shares for $11,100.00. These sums totalled $308,059.75. The sale proceeds were then paid into the H Bank account for the Mr Huber fund.
eee)On 1 November 2011, the Mr Huber fund then held a balance of 494,500 shares in CC Pty Ltd.
fff)On 1 November 2011, the parties separated.
ggg)Around 1 November 2011, the husband then sold the remaining 494,500 CC Pty Ltd shares in the Mr Huber fund for $362,021.50.
hhh)Around 1 November 2011, the Mr Huber fund then held the sums of $308,059.75 and the sum of $362,021.50, totalling $670,081.25.
iii)On 4 November 2011, the wife withdrew out of the funds referred to in (hhh) above, $320,000.00 from the H Bank account for the Mr Huber fund, leaving the balance sum of $350,081.25. The sum of $320,000.00 was then paid into a bank account and then paid out by the wife into the Ms Ovesen fund. The wife then used $295,000.00 of the monies in the Ms Ovesen fund to purchase shares in CC Pty Ltd. The wife maintained that the value of those shares then fell by nearly 40% in the 6 months following their purchase. Mr B said by 30 June 2012, these shares were then valued at $228,973.29. Out of the remaining funds of $350,081.25, the husband then transferred $347,000.00 to his own account and used those funds to re-purchase $311,000.00 worth of CC Pty Ltd shares to be held in the Mr Huber fund. This purchase resulted in 360,000 CC Pty Ltd shares rather than the 494,500 shares which had been left, as referred to in (ggg) above. The difference between the $347,000.00 and $311,000.00, namely some $36,000.00 was used by him to meet his day to day living expenses.
jjj)On 4 February 2012, the husband commenced receipt of the aged pension.
kkk)On 3 March 2012, there was a child support assessment made by the Department of Human Services – Child Support based on an assessment of the husband having a care percentage of 49% for X and the wife having 51%.
lll)During the year ended 30 June 2012, the Ms Ovesen fund had some $520,577.33 in withdrawals and $395,940.00 in deposits, so that there was a net “withdrawal” of some $124,637.30. The fund received deposits of $82,054.50 from the wife’s then employer together with the sum of $320,000.00 referred to in (iii) above. The closing balance for the Ms Ovesen fund, as at 30 June 2012, was some $95,672.99 in credit funds.
mmm)On 23 July 2012, the husband commenced these proceedings.
nnn)On 16 April 2013, parenting orders were made which provided for X to be in the wife’s care for 51% of the time and in the husband’s care for 49% of the time.
ooo)As at August 2013, there was an outstanding debt owed to EEE School of $18,879.65, which the husband agreed to repay by $2,000.00 monthly instalments, with the balance of $6,000.00 to be paid in March 2014, so as to enable X to continue her education at that school. X had the benefit of a reduction in her school fees at that school due to a bursary being granted to her.
ppp)For the period 1 December 2013 to 14 July 2014, the wife was assessed to pay child support to the husband of $10,239.00 per annum based on her 2012/2013 adjusted taxable income of $215,846.00. compared to the husband’s adjusted taxable income for that same year of $19,081.00.
qqq)In 2014, the wife was made redundant from her employment with HHHH Pty Ltd.
rrr)In 2015, the wife registered a company known as Z Pty Ltd (“Z Pty Ltd”). The wife said that she is the registered owner of 50% of the shares in that company. As there are only 2 shares, the wife owns 1 share and the other shareholder being Ms KKKK (“Ms KKKK”) owns the other share.
sss)For the period 15 July 2014 to 30 June 2015, the wife estimated her income to be $0 and the annual rate of child support payable by her, therefore, was reduced to $nil.
ttt)On 13August 2014, the husband applied for a departure from the Child Support Assessment on the basis that the wife’s income, financial resources, property and earning capacity were not properly reflected in the then assessment, given X’s education at a private school.
uuu)On 30 October 2014, a child support departure assessment was made. From 1 July 2015, the wife’s 2013/2014 adjusted taxable income of $268,762.00 was applied to her child support which then resulted in her being assessed for child support at $13,608.00 per annum. The wife objected to that decision. Based on that objection, on 18 February 2015, a new decision issued to depart from the Child Support Assessment by varying the wife’s adjusted taxable income to $137,620.00 from 1 September 2014 to 30 November 2015.
vvv)On 30 March 2015, the husband lodged an application for a review of the new decision referred to in (uuu) above, before the Social Security Appeals Tribunal (“SSAT”).
www)On 12 June 2015, the SSAT handed down its decision which set aside the then decision under review and substituted a decision to depart from the Child Support Assessment by varying the wife’s adjusted taxable income to $246,750.00 from 15 July 2014 to 31 December 2014 and then to $200,000.00 from 1 January 2015 to 30 April 2016. The annual rate of child support payable by the wife was, therefore, increased to $31,000.00 from 1 January 2015 to 31 December 2015 and then to $15,750.00 from 1 January 2016 to 30 April 2016. The wife maintained at the time of the initial hearing that this decision is still the subject of an appeal (see Exhibit “F”). The evidence is unclear as to the status of any appeal.
xxx)On 9 June 2015, a divorce order was made which took effect on 10 July 2015.
yyy)On 14 July 2015, it was announced by ASIC that it had disqualified Mr U from being an approved Self-Managed Super Fund (“SMSF”) auditor for, inter alia, deficient audit work and a failure to provide written audit reports in respect of certain funds.
zzz)As at 21 June 2016, the wife had outstanding arrears in respect of child support which, she said, were in the order of $53,052.75.
aaaa)On 16 September 2016, the former matrimonial home was sold for $2,590,000.00. The mortgage on this property was discharged with a payment to the mortgagee, being H Bank, in the sum of $1,317,161.00. The original borrowings secured under this mortgage were in the order of $1,260,000.00 and the differential of $56,911.00 related to unpaid interest on the mortgage which had not been paid during its life. The wife remained in occupation of the former matrimonial home from the date of the parties’ separation in 2011. The wife paid interest only on the mortgage over that time. The balance of the sale proceeds were then paid into the controlled monies account which was held on behalf of the parties but under the control of the wife’s former solicitor, Mr J.
bbbb)Since 23 June 2016, the wife has received the following monies:
i)$50,000.00 from the sale proceeds of the former matrimonial home.
ii)$115,000.00 from the controlled monies account.
cccc)Since 23 June 2016, the husband has received the following monies:
i)$50,000.00 from the sale proceeds of the former matrimonial home.
ii)$115,000.00 from the controlled monies account.
dddd)Since 23 June 2016, the wife has purchased (by way of exchange of contracts on 21 April 2016 with settlement on 21 October 2016) the Street P, Town Q property for the purchase price of $487,500.00 (as accepted by the husband). The wife said that this property has a mortgage debt secured over it. The Court notes that the husband maintained that while the wife had failed, until the filing of her affidavit of 20 September 2018, to produce any mortgage documents for this property showing any amount owing on it, his minute of order accepted a current mortgage liability to QQ Pty Ltd as confirmed on behalf of that entity (see Annexure “C” to the wife’s affidavit filed on 20 September 2018) of $397,600.00, leaving an equity of $89,900.00. The Court does not accept the assertion of the wife that the mortgage debt was $430,000.00 in terms of her Financial Statement filed on 12 September 2018. Notwithstanding matters identified by the Court in terms of the parties’ need to value this asset and, indeed, directions made to achieve that it does not appear to have occurred. The Court accepts the husband’s submission that it should be included in the property pool at its purchase price given the date of its purchase. The Court does not accept the value for that property as asserted by the wife in her Financial Statement filed on 12 September 2018 of $440,000.00 as this appears to have been adopted from a market appraisal provided by Ms LLLL of MMMM Estate Agents dated 12 September 2018. If one had regard to the wife’s figures, she would only have an equity of $10,000.00 in that property. The Court is of the view that her equity is, at least, $89,900.00. The wife conceded that she used some $50,000.00 of the monies released to her from the controlled monies account to purchase the Street P, Town Q property. The wife says that she also borrowed $50,000.00 from Ms KKKK and $20,000.00 from her brother. The wife said there was a loan agreement entered into between herself and Ms KKKK but none has been produced in respect of this sum. However, the wife provided a loan agreement for the sum of $180,000.00 which was dated 25 March 2014. This was somewhat problematic as the signatures on the document of both Ms KKKK and the wife were said to have been affixed on 4 July 2016 (2 years after the date of the document itself). The loan was said to be repayable within 90 days of Ms KKKK making written demand or full repayment by 31 December 2016 (that is, some 6 months after the said signatures were affixed). The document does not bear any evidence of stamp duty having been paid. Leaving aside the question of its admissibility, there is no evidence supplied by Ms KKKK as to the authenticity of the document and the circumstances in which it was brought into existence.
eeee)Notwithstanding that the wife purchased the Street P, Town Q property, it appears that she, after moving into it for a relatively short period of time, vacated it and moved into rental accommodation in the Region NNNN. The wife has, it would appear, rented out the Street P, Town Q property for $380.00 per week. The wife, in her affidavit filed 27 October 2017, deposed to renting it out at $450.00 per week. The wife, in her latest financial statement filed 12 September 2018 said that this property is, currently, not rented out and that she is receiving no income from it. In her affidavit filed 27 October 2018, she also said that she was paying rent at $550.00 per week for a property on “the outskirts of Sydney”. The wife said that she now pays no rent for the property that she now lives in, in the Region NNNN. The wife said that she does “other work” around that property in lieu of paying rent.
ffff)Since the parties’ separation in November 2011, the husband has been living with his ex-wife, Ms NN, at her home at Street OOOO, Suburb PPPP, NSW. Ms NN is a professional.
gggg)As of 20 November 2016, O Pty Ltd (“O Pty Ltd”) became the sole trustee of the Mr Huber fund. It is unclear whether O Pty Ltd is a different entity than O Pty Ltd or one in the same.
hhhh)In 2017, O Pty Ltd and the husband commenced proceedings against H Bank and I Bank as defendants in the Court G (proceedings number …) wherein the husband seeks damages for negligence and costs by reason of the said defendants effecting the payment out of the Mr Huber fund of the sum of $320,000.00 to the wife referred to in paragraph (iii), above.
iiii)In April 2018, the wife caused the Ms Ovesen fund to lodge tax returns for the financial years 30 June 2010 to 30 June 2017, as they had not been, previously, lodged.
jjjj)On 27 March 2018, the wife proposed, in her affidavit filed that day, to “move toward closing the matter” by amongst other things proposing: “upon ATO compliance/acknowledgment, the balance of [the controlled monies account] less $100,000.00 in trust for the child’s school fees, be distributed 50/50” between the parties.
kkkk)The husband had, initially, failed to lodge tax returns for the Mr Huber fund for the 2014, 2015, 2016, 2017 and 2018 financial years, asserting that the wife had retained his financial records for the earlier financial years. Subsequently, he did lodge tax returns for the 2014 and 2015 financial years. He has not lodged tax returns for the 2016, 2017 and 2018 financial years as he maintained there was no reason to do so as there were no funds left in the Mr Huber fund.
llll)The husband is, currently, in receipt of an aged pension and family allowance.
The wife says that she is not cohabitating with any another person and there was no evidence to say that she was.
n) the terms of any order made or proposed to be made under section 79 in relation to:
i)the property of the parties; or
ii)vested bankruptcy property in relation to a bankrupt party;
No relevant matter was put to the Court concerning this factor.
naa) the terms of any order or declaration made, or proposed to be made, under Part VIIIAB in relation to:
i)a party to the marriage; or
ii)a person who is a party to a de facto relationship with a party to the marriage; or
iii)the property of a person covered by subparagraph (i) and of a person covered by subparagraph (ii), or of either of them; or
iv)vested bankruptcy property in relation to a person covered by subparagraph (i) or (ii); and
No relevant matter was put to the Court concerning this factor.
na) any child support under the Child Support (Assessment) Act 1989 that a party to the marriage has provided, is to provide, or might be liable to provide in the future, for a child of the marriage; and
The husband was, at times, entitled to receive child support from the wife for the support of X. There has been substantial litigation between the parties in relation to child support and the Court refers to the decisions of the CSA and the SSAT, set out above.
The husband has paid medical expenses, school fees and uniform costs for X and the wife has paid her horse riding expenses.
o) any fact or circumstance which, in the opinion of the court, the justice of the case requires to be taken into account; and
The wife said that the husband, in 2006, advised that he was going to spend 6 months of 2017 in England and that she understood that the adult child, Ms A Ovesen, would be there as well, as she was then to be studying at University in England. The wife believed that the husband was utilising an interim distribution of property in a frivolous manner. There was no evidence to support that belief.
The costs of the parties disentangling their financial affairs is a matter where the impact of such costs (where there is not yet an order as to costs) may have a much greater effect on one party over the other party, see the Full Court of the Family Court of Australia in Hurst & Webber [2009] FamCAFC 137. However, no weight can be attributed to that, given the paucity of evidence before the Court.
The Court repeats the matters set out in paragraphs 242-251 above.
The husband has raised, at various points in time, the wife’s asserted non-compliance with Court orders. He has maintained that it is for the Court to enforce its own orders. The reality of the position is that if a person seeks to have the Court’s orders enforced, then that person needs to bring an appropriate application. The husband previously brought a contravention application against the wife and that application was determined in his favour. No further applications have been made save, simply for an assertion that there has been non-compliance at various points in time.
p) the terms of any financial agreement that is binding on the parties.
No relevant matter was put to the Court concerning this factor.
q) the terms of any Part VIIIAB financial agreement that is binding on a party to the marriage.
No relevant matter was put to the Court concerning this factor.
The husband submits that an adjustment of a further 10% should be made in his favour, so that the final adjustment should be assessed at 75% to him and 25% to the wife.
The wife submits that an adjustment of a further 5% should be made in her favour, so that the final adjustment should be assessed at 60% to her and 40% to the husband, albeit the wife suggested 70% of the controlled monies account, see paragraph 27 above.
Considering then all of the above s.75(2) factors, the Court is of the view that there should be no adjustment. The Court regards this as proper given that this reflects the cumulative outcome of the findings made pursuant to s.75(2), as set out above. See Tomasetti & Tomasetti (2000) FLC 93-023.
Accordingly, the husband would be entitled to receive $220,664.20 from the property pool and the wife to receive $220,664.20 from the same pool.
The husband will receive:
a)His Motor Vehicle WWWW $1,000.00
b)Household contents $0
c)Monies received from the controlled monies account $219,664.20
The wife will receive:
a)Her Motor Vehicle VVVV $2,000.00
b)Her scooter $1,500.00
c)Artwork $1,000.00
d)Household contents $4,000.00
e)Bank account $903.00
f)Horse float $10,000.00
g)Street P, Town Q property $487,500.00
h)Add back $62,307.28
i)Monies received from the controlled monies account $49,053.92
TOTAL $618,264.20
j)Less mortgage on the Street P, Town Q property $397,600.00
TOTAL $220,664.20
Accordingly, the parties will each be entitled to receive out of the controlled monies account expressed as a percentage, the following:
a)For the husband 81.7% (being $219,664.20 ÷ $268,718.12 x 100)
b)For the wife 18.3% (being $49,053.92 ÷ $268,718.12 x 100)
Funds have been previously paid out of the controlled monies account of $35,310.00 to Mr D and $27,940.00 to Mr B pursuant to orders dated 6 June 2018 (see paragraph 21(k) above) and $12,980.00 to Mr B and $14,850.00 to Mr D pursuant to orders dated 4 February 2019 (see paragraph 28 above). These payments have been made to date to effect compliance with the Court’s directions to enable the clearance of the ATO to be obtained with respect to the Ms Ovesen fund. As said, given the ultimate 50/50 division there is little point and no evidence has been given as to any tax consequence (positive or negative) in terms of the repayment of these monies from the Ms Ovesen fund to the controlled monies account, in any event.
With respect to the parties’ superannuation pool, the Court accepts that there will need to be payments made to enable Mr D (estimated at $850.00 plus GST being $1,020.00) and Mr B (estimated at $2,500.00 plus GST being $2,750.00), totalling $3,770.00, to wind up the Ms Ovesen fund and to transfer the balance of funds therein to an industry fund in accordance with the directions of the ATO. The total superannuation then available consists of $328,675.62 less the said $3,770.00 being $324,905.62. Accordingly, the husband would be entitled to the sum of $162,452.81 and the wife entitled to the sum of $162,452.81 in the superannuation pool.
The husband will receive:
a)$15,820.00 being the Mr Huber fund
b)$146,632.81 out of the Ms Ovesen fund
TOTAL $162,452.81
The wife will receive:
a)$1,538.00 KK Super Fund
b)$25,000.00 add back
c)$135,914.81 balance of the Ms Ovesen fund
TOTAL$162,452.81
The total of the figures of $135,914.81 plus $146,632.81 totals $282,547.62 which together with the costs of $3,770.00 (referred to in paragraph 313 above) totals $286,317.62, being the total of the Ms Ovesen fund referred to in paragraph 136 above.
Accordingly, the husband will receive $146,632.81 out of the Ms Ovesen fund of $282,547.62 and the wife will receive $135,914.81 out of the balance of that fund being 52% and 48% respectively.
The base amount to be allocated to the husband out of the Ms Ovesen fund will then be $146,632.81 or 52% whichever is the greater.
Are the proposed orders just and equitable?
Section 79(2) of the Act provides 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.”
It is the justice and equity of the actual orders that the Court must consider. Russell & Russell (1999) FLC 92-877.
As the Full Court of the Family Court of Australia said in Dickson & Dickson (1999) FLC 92-843:
“Whilst it may, as a matter of individual circumstance, be correct to say that the mere existence of disparity of wealth ought not of itself justify a settlement of property to one party at the expense of the other, it may often, in the overall circumstances of a case, call for further adjustment beyond that assessed on contributions alone, so that the final order is just and equitable…”
Section 81 of the Act requires the Court, as far as practicable, to finalise the financial relationship between parties when making orders for property settlement.
Section 79(5) of the Act needs to be exercised very sparingly and only in appropriate circumstances.
In the event that the husband receives damages or a settlement sum in proceedings commenced by him in the Court G, being proceedings number 2017/324184, as referred to in paragraph 31(hhhh) above, then after deduction of the husband’s reasonable legal costs in the conduct of those proceedings, any final settlement sum is to be divided 65% to the husband and 35% to the wife, to the effect that the husband is to pay to the wife out of any monies received by him, the percentage due to the wife within 14 days of such receipt. The Court is of the view that, in accordance with its reasoning as set out above, any split of such monies received would be in the proportion 50/50; however, an adjustment of 15% in favour of the husband should be provided given what would be a greater contribution made by him towards the acquisition of those monies, in the post separation period. The Court is of the view that the wife would, otherwise, be entitled to at least 35%, given the impact that the recovery of such monies would have on the parties’ overall property pool. The damages sought by the husband relate to a complaint made by him that the defendants in those proceedings were either negligent or in breach of contract in facilitating the removal of funds after the sale of CC Pty Ltd shares from the Mr Huber fund as orchestrated by the wife. The Court has very limited information in relation to the prospects of the husband’s suit. No advice from Counsel or Senior Counsel has been provided. The Court is unaware of the specific terms of any Defence filed and as to the evidence relied on by the parties in those proceedings. Notwithstanding this, the Court is of the view that there is a need to bring finality to this matter and that is so, even with the uncertainty and paucity of evidence concerning the current status of the said Court G proceedings and the prospects of any likely recovery. If funds are recovered, on behalf of the husband, then those funds should otherwise be available to both parties, as referred to above.
The wife will be given leave to provide a copy of the orders to implement paragraph 323 above, to the H Bank and to I Bank as the named defendants in the said proceedings.
When considering the justice and equity of the orders to be made, the Court notes the following:
a)Both parties agreed that the Court should determine an amount to be paid to ensure that their child, X, can complete her schooling at F School. In this regard, there is no pending child support departure application and the Court refers to its orders and decision made on 8 February 2019. However, the Court notes that the parties will have access to funds out of which they could attend to the payment of any future school fees.
b)The parties’ M Ltd shareholdings held in the I Bank account number 2 should be transferred 50/50 to each of the husband and the wife either by the creation of separate accounts with I Bank or as, otherwise, directed by the parties. The Court does not accept the wife’s proposed order as being appropriate in circumstances of effecting a payment or transfer to the Ms Ovesen fund. The taxation consequences of such an order are unclear and the shareholdings held with I Bank have not been held as superannuation funds, in any event.
c)The wife should be responsible for the payment of her credit card debts to UU Bank Visa and H Bank , given the parties’ separation date of 1 November 2011 and the fact that, more than likely, the transactions which have given rise to the credit card debts were all post separation. The wife has asserted that she owes UU Bank Visa some $5,600.00 and H Bank some $16,920.00 as at 31 July 2015, being in excess of some 3 years ago.
d)The wife should retain the Street P, Town Q property purchased post separation with an equity of approximately $90,000.00.
e)The wife is, in terms of compliance with ATO directions, to wind up the Ms Ovesen fund and to ensure her superannuation funds are, thereafter, held by an industry fund.
f)Notwithstanding the wife’s assertion as to the husband’s failure to have audited accounts for the Mr Huber fund, no issue has been raised that this fund is not, otherwise, compliant. Accordingly, payments or rollovers can be effected to that fund.
g)No party is seeking to maintain a spousal maintenance claim against the other. The Court notes, in that regard, that if financial need was accepted for either of the parties, their known financial circumstances would indicate that neither party was, otherwise, able to meet the needs of the other out of their current assets and income. It is unlikely, in those circumstances, that any maintenance order so made would be, practically, enforceable.
h)Both parties have been able to make arrangements to accommodate themselves post the sale of the former matrimonial home.
The Court is of the view that there should be an injunctive order as sought by the husband with respect to the wife and the conduct of the industry fund to be established by her pending the superannuation split, the subject of the orders of the Court. The injunctive order sought by the husband goes no further than is reasonably necessary to ensure that he is informed in relation to his proposed entitlement and to receive notice of any application or request made by the wife which seeks the release of entitlements which may affect his entitlement pending such superannuation split and to restrain the wife (including by her servants and/or agents) from doing any act or thing which would otherwise prevent the husband from receiving the benefits of the superannuation split, so ordered.
The Court is of the view there should be an order enabling each of the parties to be removed as a trustee from each other’s superannuation fund and for the parties to sign all documents reasonably required to effect such resignation/removal and to appoint some other person as nominated to be such a trustee, if required.
The Court will make the consent order for the parties to do all acts and sign all documents necessary to transfer a Motor Vehicle N to the parties’ daughter, Ms A Ovesen.
The Court will make further declarations, largely in accordance with the parties’ agreement, that each be declared to be the owner of their own property.
The Court will make, by consent, the usual order in respect of the Registrar of the Court being authorised to sign documents and do acts necessary to give validity to the Court’s orders in circumstances where a party has defaulted in so doing.
The Court is satisfied that, in all the circumstances of this case, the orders proposed are just and equitable.
Costs
Section 117 of the Act sets out that each party shall bear his or her own costs subject to the considerations in sub-section two.
The husband sought an order that the wife pay his costs of these proceedings, with such costs to be capped at $100,000.00 and to include the husband’s costs of and incidental to his application in a case for contravention filed on 20 June 2013 and his costs of and incidental to the application in a case filed by the wife on 2 September 2013 which was withdrawn and dismissed on 25 August 2014.
Any order for costs must also be determined in light of the substantive judgment and the relative success or failure of the parties. This is, naturally, something that can only be addressed after judgment is delivered.
The Court proposes to make the orders and directions in relation to any application for costs that might be made as set out above.
I certify that the preceding three hundred and thirty-five (335) paragraphs are a true copy of the reasons for judgment of Judge Kemp
Date: 7 May 2019
Key Legal Topics
Areas of Law
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Family Law
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Civil Procedure
Legal Concepts
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Costs
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Remedies
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Res Judicata
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Procedural Fairness
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Jurisdiction
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