Hummel & Cardoso
[2025] FedCFamC1F 55
•14 February 2025
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Hummel & Cardoso [2025] FedCFamC1F 55
File number(s): ADC 5600 of 2020 Judgment of: KARI J Date of judgment: 14 February 2025 Catchwords: FAMILY LAW - PROPERTY – Where the wife seeks certain assets be quarantined from the assets available for division between the parties – Where the parties jointly own property with a third party –Where the wife asserts that the parties hold real property on trust for a third party – Where the third party had been a party to the proceedings but invited the Court to dismiss her claim–– Where the wife inherited an interest in real property in Country B – Where the wife asserts that non-residents cannot own property in Country B and therefore the inheritance should not be included in the asset pool – Where the wife failed to put any expert evidence on the law of Country B before the Court –– No assets quarantined – Consideration of contributions and s 75(2) factors – Consideration of justice and equity – 62.5/37.5 division of non-superannuation assets in favour of the wife – Superannuation equalised at the request of the parties
FAMILY LAW – PRACTICE AND PROCEDURE – Where the third party lacks capacity and was represented by a litigation guardian – Rulings made during the trial regarding the third party – Where the third party ultimately invited the court to dismiss her claim and she was removed as a party to the proceedings
FAMILY LAW – PRACTICE AND PROCEDURE – Referral of solicitor to the Legal Profession Conduct Commissioner – Where the application filed by the third party was fundamentally flawed – Where the litigation guardian filed no evidence in support of the third party’s claim – Where there are concerns that the solicitor appearing as litigation guardian for the third party poorly represented a vulnerable person
FAMILY LAW – COSTS - Costs thrown away of the husband to be paid by each the wife and the solicitor appearing as litigation guardian
Legislation: Evidence Act 1995 (Cth) ss 63, 67, 156
Family Law Act 1975 (Cth) ss 75, 78, 79, 117, Pt VIII
Federal Circuit and Family Court of Australia Act 2021 (Cth) s 67
Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) r 1.04, 1.33, 1.34, 2.50, 2.52, 6.01, 6.03, 6.17, 12.13, 12.17, Pts 2.6, 6.1, Sch 3
Cases cited: Bevan & Bevan (2013) FLC 93–545
Chorn & Hopkins (2004) FLC 93-204
Colgate-Palmolive Co v Cussons Pty Ltd (1993) 118 ALR 248
GLJ v The Trustee of the Roman Catholic Church for the Diocese of Lismore [2023] HCA 32
Fitzgerald (as child representative for A (Legal Aid Commission of Tasmania)) v Fish and Another (2005) 33 Fam LR 123
Hickey & Attorney-General (Intervener) (2003) FLC 93-143
I and I (No 2) (1995) FLC 92-625
Jones v Dunkel (1959) 101 CLR 298
Kohan & Kohan (1993) FLC 92-340
Medlon & Medlon (No 6) (Indemnity Costs) (2015) FLC 93-664
Munday & Bowman (1997) FLC 92-784
Norbis v Norbis (1986) FLC 91-712
Penfold v Penfold (1980) 144 CLR 311
RCB v Forrest & Ors (2012) 247 CLR 304
Stanford & Stanford (2012) 247 CLR 108
Storstrand & Storstrand [2024] FedCFamC1A 128
Trevi & Trevi (2018) FLC 93-858
Weir & Weir (1993) FLC 92-338
Zetta Jet Pte Ltd v The Ship "Dragon Pearl" (No 2) [2018] FCA 1130
Division: Division 1 First Instance Number of paragraphs: 252 Date of hearing: 29 April 2024 – 3 May 2024, 8, 10, 24 May 2024 Place: Heard in Adelaide, delivered in Sydney Counsel for the Applicant: Ms Miller Solicitor for the Applicant: Eastern Legal Counsel for the First Respondent: Ms Ross Solicitor for the First Respondent: Belchamber Legal Solicitor for the Second Respondent: Mr N of the Crown Solicitor’s Office within Public Trustee ORDERS
ADC 5600 of 2020 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MR HUMMEL
Applicant
AND: MS CARDOSO
First Respondent
MS GOLDSCHMIDT
Second Respondent
ORDER MADE BY:
KARI J
DATE OF ORDER:
12 FEBRUARY 2025
THE COURT ORDERS THAT:
Property Settlement and Costs as and between the husband and the wife
1.In full and final settlement of all claims that either party may have against the other for settlement of property and alteration of interests in property pursuant to Part VIII of the Family Law Act 1975 (Cth):
(a)Within 35 days of this Order (“the settlement date”) the husband shall pay to the Belchamber Legal Trust Account for and on behalf of the wife, the sum of FIFTYTWO THOUSAND NINE HUNDRED AND FIFTY DOLLARS ($52,950) ("the settlement sum"), minus those amounts referred to in order 3.
2.Contemporaneously with the payment of the settlement sum:
(a)The husband shall transfer to the wife the whole of his estate, title and interest in the property situated at and known as D Street, Suburb C in the State of South Australia being the whole of the land described in Certificate of Title Register Book Volume … Folio … ("the Suburb C property") with the wife to be solely responsible for the costs of the transfer including the discharge of mortgage fee, registration of transfer fee, conveyancing and PEXA fees; and
(b)The wife shall transfer to the husband the whole of her estate, title and interest in the property situated at E Street, Suburb F, in the State of South Australia being the whole of land described in Certificate of Title Register Book Volume … Folio … ("the former matrimonial home") with the husband to be solely responsible for the costs of the transfer including the discharge of mortgage fee, registration of transfer fee, conveyancing and PEXA fees.
3.That contemporaneous with the payment of the settlement sum, the husband shall deduct from the settlement sum the total amount of $7,635 (SEVEN THOUSAND SIX HUNDRED AND THIRTY FIVE DOLLARS), calculated as follows:
(a)The amount of $920 (NINE HUNDRED AND TWENTY DOLLARS) payable by the wife to the husband pursuant to Order 3 made 9 November 2022;
(b)The amount of $880 (EIGHT HUNDRED AND EIGHTY DOLLARS) payable by the wife to the husband pursuant to Order 1 made 20 September 2021;
(c)The amount of $880 (EIGHT HUNDRED AND EIGHTY DOLLARS) payable by the wife to the husband pursuant to Order 1 made 20 January 2022; and
(d)The amount of $4,955 (FOUR THOUSAND NINE HUNDRED AND FIFTY FIVE DOLLARS) payable by the wife to the husband by way of costs in relation to the oral applications for costs made by the husband during the final hearing.
4.On or before the settlement date, the wife shall vacate the former matrimonial home and the husband shall thereafter have sole use and occupation of the former matrimonial home.
5.Within 7 days of the date of this Order the wife shall be at liberty to withdraw and thereafter retain the entire funds held in the joint G Bank account ("the G Bank account") and thereafter close the account.
6.The husband is restrained by injunction from withdrawing any funds from the G Bank account.
7.Pending the settlement date the husband shall pay all instalments of principal and interest in relation to each of the mortgages registered over the former matrimonial home (G Bank Loan Account Numbers …29 and …80 (“the mortgages”)) together with all rates, taxes and other outgoings with respect to the former matrimonial home.
8.In default of payment of the settlement sum by the settlement date the husband shall pay interest on any unpaid balance at the rate set by r 10.17 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) and should such default continue for a period of more than 30 days, then the former matrimonial home shall be sold and the net proceeds of sale thereof shall be divided as to:
(a)Firstly, the payment of the settlement sum to the wife (less the amounts referred to in Order 3 herein) together with all interest accrued thereon and the costs of and incidental to any application to this Honourable Court for sale of former matrimonial home; and
(b)Secondly, the balance to the husband.
9.The husband shall indemnify the wife and keep her forever indemnified with respect to all instalments of principal and interest pursuant to the mortgages registered over the former matrimonial home, and otherwise obtain a full discharge of the wife’s liability pursuant to the mortgages.
10.The wife shall indemnify the husband and keep the husband forever indemnified in respect of:
(a)Any past, present or future taxation liability of the wife;
(b)Any liability registered in the wife's name;
(c)The personal loan to Mr H;
(d)Any other personal loans;
(e)Any credit card liability registered in the wife's name; and
(f)Any future liability of the wife.
11.The husband shall indemnify the wife and keep the wife forever indemnified in respect of:
(a)Any past, present or future taxation liability of the husband;
(b)Any liability registered in the husband's name;
(c)His personal loans from:
(i)Ms J;
(ii)Mr K; and
(iii)Mr L.
(d)Any credit card liability registered in the husband's name; and
(e)Any future liability of the husband.
12.Henceforth the real property and all personalty in the possession of the wife including but not limited to:
(a)her interest in the Suburb C property;
(b)her interest in the City M property;
(c)Motor Vehicle 1
(d)her jewellery;
(e)her savings;
(f)the G Bank joint savings;
(g)any furniture, furnishings and effects in the former matrimonial home;
(h)the monies withdrawn from the joint savings account;
(i)her superannuation entitlements;
(j)any shares and investments in her name
shall vest absolutely in the wife free of all further claim or demand or right or entitlement of the husband.
13.Henceforth the real property and all personalty in the possession of the husband including but not limited to:
(a)the former matrimonial home;
(b)Motor Vehicle 2;
(c)his savings;
(d)Motor Vehicle 3;
(e)his superannuation entitlements (subject to Order 18); and
(f)any long service leave entitlements and life insurances
shall vest absolutely in the husband free of all further claim or demand or right or entitlement of the wife.
14.Each party shall be responsible for their own taxation liabilities.
15.Within 14 days of this Order the parties shall do all things and take all steps and sign all such documents as shall be necessary to sever their financial ties in respect of telephone plan contracts, the payment of life insurance premiums, the payment of health insurance premiums and any other joint contracts, accounts, plans or services.
16.Each party shall (subject to compliance with the specific provisions of this Order):
(a)release the other party from any liability for any claim that either one may have against the other in respect of any property and/or financial resources present or future weather equity vested or contingent now or hereafter owned by either of them; and
(b)discharge without calling upon the other to contribute thereto to their several debts contracted for or by them.
17.Henceforth each party is restrained by injunction from pledging the credit of the other.
18.In relation to the Applicant husband's superannuation entitlements with Super Fund 1, Member Number 42 ("the Fund"):
(a)The Court allocate for the purposes of section 90XT(4) of the Family Law Act 1975 (Cth), a base amount of $152,241 to the wife from the husband's entitlement with the Fund;
(b)Pursuant to section 90XT(l)(a) of the Family Law Act 1975 (Cth) whenever a splittable payment becomes payable in respect of the husband's entitlements in the Fund the wife shall be paid an amount calculated in accordance with Part 6 of the Family Law (Superannuation) Regulations 2001 (Cth) using the base amount of $152,241 pursuant to paragraph 18(a) herein and there shall be a corresponding reduction in the entitlement the husband (and any other person to whom a splittable payment may be made) would have had in the Fund but for this order;
(c)Paragraph 18(a) herein shall take effect from the operative time being the beginning of the fourth business day after the day on which an original certified copy of the final sealed Order is served upon the trustee of the Fund;
(d)Having been afforded procedural fairness, the trustees of the Fund shall be bound to observe the provisions in paragraph 18(a) herein and the requirements pursuant to the Family Law Act 1975 (Cth) and the Family Law (Superannuation) Regulations 2001 (Cth);
(e)The parties and the trustees of the Fund shall do all such things and sign all such documents as may be necessary to comply with the provisions in paragraphs 19(a) and 19(b) herein and the requirements pursuant to the Family Law Act 1975 (Cth) and the Family Law (Superannuation) Regulations 2001 (Cth);
(f)Within 7 days of this Order being made:
(i)the wife shall serve a certified copy of this Order upon the trustees of the Fund;
(ii)the wife shall give notice in writing to the trustees of the Fund pursuant to regulation 72 of the Family Law (Superannuation) Regulations 2001 (Cth);
(g)After service of payment split notice pursuant to regulation 7A.03 of the Superannuation Industry (Supervision) Regulations 1994 (Cth) the wife shall do all things and sign all documents as may be necessary to, including but not limited to, exercising her request pursuant to regulation 7A.05 of the Superannuation Industry (Supervision) Regulations 1994 for the transfer or rollover of the transferable benefits pursuant to these Orders to a complying superannuation fund of her choosing;
(h)The parties shall each pay one half of any fees charged by the trustees of the Fund in administering the payment split pursuant to paragraph 18(a) herein.
(i)Each party shall pay their own costs of and incidental to these proceedings but the transferee in each case shall pay the cost and disbursements of and incidental to any transfer to give effect to the terms of this order.
19.Each party shall do all such acts and things and sign all such necessary documents to give effect to the terms of this order.
20.It be a condition of these Orders that if either party shall refuse or neglect to execute any Memorandum of Transfer or any other document necessary to give effect to the terms hereof in the proper form within seven days after the same shall have been tendered to that party by or on behalf of the other party then in such case a Registrar or Deputy Registrar of the Federal Circuit and Family Court of Australia, upon proof by affidavit of such refusal or neglect, is hereby appointed to execute and if in his or her opinion it shall be necessary to do so, to settle the same and do all such other acts and things and execute such other documents as shall be necessary to give full force and effect hereto.
21.All extant applications as and between the husband and the wife (save as to costs) be dismissed.
Orders directed to the solicitor for the second respondent
22.On or before 15 August 2025 the solicitor appearing as litigation guardian for the second respondent, Mr N, personally pay the sum of $2,448 (TWO THOUSAND FOUR HUNDRED AND FORTY EIGHT DOLLARS) to the Eastern Legal solicitor’s trust account for and on behalf of the husband by way of costs.
23.The Principal Registrar of the Federal Circuit and Family Court of Australia (Division 1) is requested to provide the following material to the South Australian Legal Profession Conduct Commissioner and the Public Trustee for their consideration as to the conduct of Mr N in these proceedings:
(a)These reasons for judgment; and
(b)The transcript of the hearing on 29 April 2024.
24.The name of the legal practitioner the subject of the referral is to be redacted from these reasons for judgment prior to any public dissemination.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Part XIVB of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Hummel & Cardoso has been approved pursuant to s 114Q(2) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
KARI J
INTRODUCTION
These are proceedings relating to the alteration of interests in property between the parties to a long marriage of 29 years duration.
The dispute between the parties concerns not only the manner in which the property of the parties is to be divided, but also the composition of the property available for division.
In regard to the property available for division, at the commencement of the final hearing there were two central disputes between the parties. The first related to a residential property at Suburb C, and the second related to the wife’s interest (if any) in a property in Country B. But for these two issues, the dispute between the parties was a relatively straight forward one in circumstances where the property available for division between the parties, excluding the two properties the subject of dispute, was relatively modest.
The second respondent to the proceedings was the wife’s sister. She was represented in the proceedings by a litigation guardian. Her application however was dismissed by consent on the second day of the final hearing and she was removed as a party to the proceedings. Despite this, and for ease of reference, she shall be referred to as the second respondent throughout these reasons.
While more shall be said about the second respondent’s claim throughout these reasons, the nub of the dispute concerning her related to a residential property at Suburb C owned jointly between the husband, the wife and the second respondent. The second respondent’s claim (whilst crafted incompetently) contended that the husband and the wife’s interest in this property was held by them on trust for the second respondent.
Whilst one might have thought that the resolution of the claim made by the second respondent removed a significant issue in dispute in the proceedings, this was not the case. This is because the wife, continued to advance the case abandoned by the second respondent in relation to the Suburb C property, despite the dismissal of the claim at the request of the second respondent.
As these reasons bear out, the proceedings were marred by a number of issues which led to significant delays in the trial being listed and heard. Additionally, the trial itself was marred by a range of issues from its commencement, which were the subject of rulings; the reasons of which were reserved on the basis that they would be published at the time of publishing reasons in relation to the substantive dispute between the husband and the wife, and therefore form part of the reasons that follow.
For all of the reasons that follow, orders shall be made dividing the non-superannuation property of the parties on a 62.5/37.5 basis in favour of the wife, together with orders effecting an equalisation of the parties’ superannuation entitlements.
SHORT HISTORY
The parties to the marriage are:
(a)The husband, who was born in 1963. He was 60 years of age at the time of trial. He is employed in a technical role.
(b)There is a dispute as to the age of the wife, with the wife asserting she was born in 1965 making her 59 years of age, and the husband asserting that she was born in 1968 making her 56 years of age. It is not necessary for the Court to resolve this dispute about the wife’s age, and in any event the parties made no issue of the same during the final hearing. The wife is currently unemployed. The wife is one of eight children; seven of whom are living.
There is no dispute that:
(a)The parties were both born in Country B.
(b)The husband came to Australia in 1980 and he became an Australian citizen in about 1988.
(c)The wife came to Australia in 1990.
(d)The parties met in early 1991 and married in mid-1991.
(e)The parties separated under the same roof in the second half of 2020, with the husband asserting the parties separated on 5 July 2020 and the wife asserting they separated in October 2020. Again, nothing of substance turns on this dispute.
(f)The parties have continued to reside separately under the same roof since their separation.
(g)Accordingly, the marriage of the parties is of 29 years duration.
(h)There are four adult children of the marriage; the youngest two continue to reside in the former matrimonial home.
Until her removal as a party to the proceedings pursuant to orders made during the trial on 30 April 2024, the second respondent participated in the proceedings through the Public Trustee, who was appointed the second respondent’s litigation guardian pursuant to an order made 14 March 2024.
So far as the issues that concern the second respondent, and having regard to the exhibits received during the final hearing, I find:
(a)The second respondent purchased a property at D Street, Suburb C (“the Suburb C property”) with a transfer of the property into her sole name being effected in 1996. On the same date a mortgage over the property was registered by O Bank (Exhibit “W4”).
(b)On a date in 2008 a transfer was registered transferring the Suburb C property into the joint names of each the husband, the wife and the second respondent (Exhibit “W4”). The Memorandum of Transfer bears a Revenue SA Stamp Duty stamp recording the “Consideration/Value/Security” at an amount of around $121,670 (Exhibit “W5”).
(c)On the same date in 2008 the mortgage to O Bank secured over the Suburb C Property was discharged. The total amount secured and the subject of the discharge was $64,000 (Exhibit “W5”).
(d)The only dealings in the property after the above date in 2008 were (Exhibit “W4”):
(i)The registration and later withdrawal of a caveat by Public Trustee in 2019 and 2020 respectively.
(ii)A Notice of Charge registered by the Legal Services Commission of South Australia in 2023.
(iii)A caveat registered by Public Trustee in 2024.
(e)In 2023 a single expert valuation was undertaken of the Suburb C Property. The expert determined (and I accept) the market value of the property at that time to be $560,000 (Exhibit “H7”).
The husband and the wife do not agree the basis upon which they acquired their interest in the Suburb C property.
It is the husband’s case (pursuant to paragraphs 66-100 of his trial affidavit filed 17 March 2024) that:
(a)The second respondent fell into financial difficulties in 2008, resulting in the mortgage payments for the mortgage to O Bank registered over the Suburb C property falling into arrears, and the bank threatening foreclosure.
(b)After discussing the situation with the second respondent, the wife and her parents an agreement was reached that the husband and the wife would financially assist the second respondent to enable the second respondent and other family members who also lived in the Suburb C property to continue to reside in the home.
(c)Following these discussions an agreement was reached which resulted in:
(i)The husband and the wife remortgaging their home and from the funds obtained they applied the sum of approximately $14,845 towards the discharge of the mortgage registered over the Suburb C property, together with stamp duty fees of approximately $5,129.
(ii)The husband and the wife taking over “responsibility for the [Suburb C] property and its maintenance”.
(iii)The husband and the wife receiving modest and irregular rental payments from two of the wife’s brother’s (“Mr P” and “Mr Q”) who also resided in the Suburb C property for periods of time until late 2017; albeit that ultimately the parties and the second respondent served a “notice of eviction” on one of the wife’s brothers, as the Suburb C property had not been looked after properly by the brothers.
(iv)The husband and the wife paying outgoings for the property from the time that they acquired an interest in the property, which the husband asserts cumulatively totalled an amount of approximately $20,000 by 2020.
(d)Between 2018 and 2019 the husband personally spent considerable time carrying out a range of repairs and improvements to the Suburb C property (as a result of the damage and poor maintenance caused by the wife’s brothers), at a total cost of $13,800; with $5,000 of that amount borrowed from the wife’s brother, Mr H.
(e)Between 2017 and mid-2019 the second respondent resided with the parties; ultimately moving back into the Suburb C property in mid-2019.
(f)In mid-2020, the second respondent took over all the expenses for the Suburb C property.
It is the wife’s case (pursuant to paragraphs 97-121 of her trial affidavit filed 3 April 2024) that:
(a)The second respondent purchased the Suburb C property in 1996 and lived there with their brothers (Mr P and Mr Q) until her marriage in 2001.
(b)Following her marriage in 2001, the second respondent went to live in a home with her then husband. Her brothers thereafter continued to reside in the Suburb C property.
(c)In 2007 the second respondent lost her job and, as a result, across late 2007 and early 2008 she missed a series of mortgage repayments for the Suburb C property (there appears to be a typographical error in the wife’s affidavit at paragraph 100 in relation to the 2007 and 2008 dates which are referred to as 2017 and 2018).
(d)The wife’s parents approached the husband and the wife to assist the second respondent to retain the Suburb C property.
(e)The parties agreed to remortgage their home thus borrowing funds to repay the mortgage registered over the Suburb C property, with an amount of approximately $15,000 paid to do so.
(f)The decision to transfer the property into the joint names of the husband, the wife and the second respondent was done to ensure that the second respondent was not “forced” to sell the Suburb C property, because by that stage the second respondent’s marriage had broken down.
(g)It was explained to the wife that “technically the last person to die would get the whole of the house” (Wife’s trial affidavit filed 3 April 2024, paragraph 108).
(h)The wife and the husband told the second respondent that the Suburb C property was still hers, and that they each agreed that the second respondent would repay the husband and the wife the monies applied to discharge the mortgage registered over the Suburb C property.
(i)The husband and the wife did not acquire their interest in the Suburb C property for market value, with reference to the value stamped on the transfer of around $121,670, which was the value applied for the purpose of calculating stamp duty.
(j)The husband and the wife paid the council and water rates from the time that they acquired an interest in the Suburb C property. They also retained the rent paid by the wife’s brothers.
(k)The husband and the wife took over control of the Suburb C property in 2017 as the second respondent was hospitalised due to mental illness, and she also separated from her husband.
(l)The wife’s sister (“Ms R”) was appointed administrator of the second respondent’s affairs in approximately 2017 as a result of her hospitalisation, and the wife and Ms R were appointed the second respondent’s guardian.
(m)In 2018 the Public Trustee was appointed administrator of the second respondent’s affairs as a result of concerns over the acquisition of an interest in the Suburb C property by the husband and the wife.
Taking into account the evidence deposed in writing by each of the parties and their oral evidence, I otherwise consider that I am able to make certain findings about some, but not all, of the factual disputes regarding the Suburb C property. To that end I find:
(a)The intention of the second respondent and the husband and the wife when they acquired an interest in the Suburb C property was that the interest be held jointly by the husband and the wife and the property be owned jointly between the husband, the wife and the second respondent.
(b)I accept the evidence of the wife that the second respondent at all times understood that her legal interest in the property had been transferred to the husband and the wife. I do so as this is consistent with the parties’ mutual evidence that one of the reasons for the transaction (aside from the financial hardship of the second respondent) was to defeat any claim over the property that might have been made by the second respondent’s then husband.
(c)The amount paid by the husband and the wife to acquire an interest in the Suburb C property was an amount of approximately $14,845 as deposed by the husband, together with the payment of stamp duty on the transfer in the amount of approximately $5,129. Those funds came from the husband and the wife re-financing and drawing further down on their home loan.
(d)The husband and the wife paid outgoings for the Suburb C property (council and water rates and other associated expenses), from the time they acquired their interest in the property (2008) until mid-2020, when the second respondent assumed responsibility for all outgoings for the property (a period of over twelve years). Given the paucity of evidence as discussed in these reasons, the amount of these outgoings is not quantifiable, both as to the period of time when the husband and the wife met these liabilities, and additionally as to the period from 2020 to the time of trial when the second respondent met these liabilities.
(e)At various times both prior to and during the period in which the husband and the wife held an interest in the Suburb C property, two of the wife’s brothers lived in the home. The brothers, however, paid intermittent and less than market value rent. Again, given the paucity of evidence it is impossible to make any findings about the dates upon which the wife’s brothers lived in the property and/or as to the quantum of rent that was paid and retained by the parties to the exclusion of the second respondent.
(f)The second respondent resided with the husband and the wife, and not in the Suburb C property between approximately 2017 and mid-2019.
(g)Significant improvements and repairs were carried out to the Suburb C property by the husband between 2018 and 2019, largely as a result of damage and poor maintenance caused by the wife’s brothers. The manual labour for the majority of these improvements was conducted by the husband. The costs associated with the purchase of materials for these improvements was an amount of approximately $13,800, with the parties borrowing a sum of $5,000 from the wife’s brother Mr H, which remains outstanding.
In light of all of these findings, I am satisfied that the husband and the wife have made significant financial and non-financial contributions to the Suburb C property. Moreover, I am satisfied that these contributions, on their face do not sit comfortably with the wife’s assertions that the parties hold their interest in the Suburb C property on trust for the second respondent.
Significantly, and despite the abandonment by the second respondent of her claim, there was no basis on the evidence before the Court to make any findings that would ground any basis for a transfer of the husband and/or the wife’s interest in the Suburb C property to the second respondent as sought by the wife.
HISTORY OF THE LITIGATION
These proceedings were commenced by the husband when he filed an Initiating Application in the Federal Circuit Court of Australia on 18 November 2020. These reasons bear out why it is that these proceedings unfortunately took so long to reach a final hearing, and why there has been a conscious delay on my part in determining the proceedings.
At the time that the proceedings were commenced:
(a)The parties to the litigation were the husband and the wife.
(b)The husband asked the Court to make orders that would effect a 55/45 division of the non-superannuation assets in the wife’s favour together with superannuation splitting orders that would effect an equalisation of the parties’ superannuation interests.
When the wife filed her Response on 28 January 2021, she sought orders that would effect an equal division of the parties’ assets between them. In addition, and whilst poorly crafted, the wife sought an order that the parties’ interests in the property Suburb C property, together with the wife’s inheritance be “quarantined” from the assets available for division between the husband and the wife.
On 12 May 2021 the second respondent filed an Application in a Proceeding seeking an order that she be joined as a party to the proceedings. At the time that this application was filed, the relief sought by the second respondent was not specified and it was entirely unclear. The affidavit in support of the application provided no assistance in understanding the relief sought by the second respondent. On it’s face the application was incompetent.
Orders were made by a judge in the Federal Circuit Court of Australia (as it then was) on 14 May 2021 for the parties to file a response to the second respondent’s Application within 28 days. However, prior to compliance with this order, and despite the significant deficiencies in the application for intervention, an order was made in chambers at the mutual request of the parties on 21 June 2021 joining the second respondent to these proceedings.
A Conciliation Conference was scheduled to take place in 2021 (as ordered on 14 May 2021). Shortly prior to the Conciliation Conference and on 1 July 2021, the second respondent filed a Response. By that document the second respondent set out the relief that she sought. The orders were crafted generally as ones to be made by way of “settlement of property”. The proposed orders included orders effecting a transfer of the husband and the wife’s interests in the Suburb C property to the second respondent, together with orders to account for and adjust rental income received for the Suburb C property together with outgoings, maintenance and repair costs as and between the husband and the wife and the second respondent.
I comment at this juncture that the final orders sought by the second respondent in her Response filed 1 July 2021 were fundamentally flawed. This is because, orders by way of “settlement of property”, presumably in exercise of the power found in s 79 of the Family Law Act 1975 (Cth) (“the Act”) as it relates to the parties to a marriage, cannot be made in favour of a person who is not a party to the marriage.
On 27 July 2021 the husband filed a Reply in which he sought by way of interlocutory and final orders that the second respondent’s Response be dismissed. In effect, the husband sought a summary dismissal of the second respondent’s Response. It does not appear from the court file that the interlocutory orders sought by the husband were ever listed for hearing, despite him having immediately put summary dismissal of the application in issue.
On 9 December 2021 the proceedings were transferred to the Federal Circuit and Family Court of Australia, Division 1. The reason given for the transfer was that the trial was expected to be “at least 5 days” duration, an interpreter was required for the first respondent and an issue had arisen as to the validity of “the maternal grandmother’s Will”.
On 20 January 2022 orders were made referring the proceedings to the list of cases awaiting trial.
The proceedings first came before me in chambers on 11 July 2022 and I made an order listing the proceedings to a First Day of Trial Hearing on 3 November 2022. That hearing proceeded, but was adjourned to 9 November 2022.
At the hearing on 9 November 2022, the husband pressed his interlocutory application for summary dismissal of the second respondent’s Response, first made on 27 July 2021. The application was given a hearing on 10 February 2023. That it took over eighteen months for the summary dismissal application to be given a hearing date is unfortunate.
Three days prior to the interlocutory hearing of the husband’s summary dismissal application (7 February 2023), the second respondent filed an Amended Response for Final Orders. By that document the second respondent properly abandoned all of the orders that she had previously sought, and instead sought orders which, at first blush, were orders that the Court has the power to make. The orders sought were in the following terms:
1)That pursuant to section 78 of the Family Law Act 1975 (as amended), this Honourable Court declare that the applicant husband, [Mr Hummel], and the first respondent, [Ms Cardoso], hold the whole of their legal interest in [D Street], [Suburb C], in the State of South Australia (hereinafter referred to as “the [D Street] property”), being the whole of the land comprised and described in Certificate of Title Register Book Volume […] Folio […], upon trust for the second respondent, [Ms Goldschmidt].
2)That within sixty (60) days of the date of such declaration, the applicant and the first respondent do transfer to the second respondent their interest in the [D Street] property to the intent that the second respondent henceforth be entitled thereto for the second respondent’s sole use and enjoyment absolutely and without further claim thereupon by the applicant and the first respondent.
3)In the event that the applicant and the first respondent refuse or neglect to execute a Memorandum of Transfer referred to in paragraph 2 hereof, in a registrable form within seven (7) days after the same shall have been tendered to them, then and in such case a Registrar of this Court, upon proof by Affidavit of such refusal or neglect, is hereby appointed to execute and do all such other acts and things and to execute such other documents as shall be necessary to give full force and effect thereto and shall execute and do the same accordingly.
4)That pursuant to section 78 of the Family Law Act 1975 (as amended), this Honourable Court declare that all and any payments of rent received by either the applicant husband [Mr Hummel], or the first respondent, [Ms Cardoso], or the both of them in respect of the [D Street] property, were received in their capacity as trustee for the second respondent, upon trust for the second respondent, [Ms Goldschmidt].
5)Costs
(As per the original)
As a result of the Amended Response filed by the second respondent, at the hearing on 10 February 2023, the husband did not press his application for summary dismissal. The husband’s costs in relation to the hearing (and those from 9 November 2022) were reserved. A raft of other orders were also made, including orders for the parties to participate in a Conciliation Conference in 2023.
On 12 April 2023, the legal representative for the second respondent ceased acting for her by the filing of a Notice of Withdrawal.
The Conciliation Conference scheduled for 2023 was unable to proceed. The notation to the orders made that day by the Registrar (at Notation B) identify the reasons for this to have been:
a.There being no appearance for or on behalf of the second respondent;
b.The second respondent is no longer legally represented; and
c.The applicant’s legal representative submits that the second respondent suffers from mental health issues which may be the cause of her non-attendance today.
The proceedings returned before me on 20 July 2023, at which time I made orders listing the proceedings to a final hearing on the next available date, being 29 April 2024. The notations to the orders however record the wife’s concern that the second respondent lacked capacity and that her brother had made an application to SACAT in relation to the second respondent.
Thereafter the proceedings dissolved into a state of suspended animation, with the wife and her family attempting to understand the second respondent’s mental health and capacity to participate in these proceedings. There were a number of hearings, at which both the wife and the second respondent did not attend and participate.
Finally, on 17 January 2024 the wife filed an Application in a Proceeding in which she sought orders that a litigation guardian be appointed for the second respondent, and that the Attorney-General appoint a person to be the manager of the affairs of the second respondent.
Thereafter the proceedings again entered a state of suspended animation, with several hearings taking place and a number of documents being filed, before ultimately an order was made on 14 March 2024 appointing the Public Trustee as litigation guardian for the second respondent. That order was expressed as applying for the “duration of any orders made by SACAT appointing the Public Trustee as the administrators of the second respondent’s estate”. The order was made in circumstances where on 19 February 2024 interim orders were made by SACAT appointing the Public Trustee the “full administrator of the estate” of the second respondent.
THE ORDERS SOUGHT
During the trial the husband’s counsel provided the Court with a proposed minute of final orders (Exhibit “H5”). By that document, the husband sought orders to effect a 55/45 division of the parties’ non-superannuation assets in favour of the wife, together with an equalisation of the parties’ superannuation interests. The substantive orders sought provided for:
(a)The wife to make a payment to the husband in the amount of $55,000, and in the event of non-payment the Suburb C property to be sold to satisfy the payment for the wife’s share of the proceeds of sale.
(b)The husband to transfer his interest in the Suburb C property to the wife.
(c)The wife to transfer to the husband her interest in the property at E Street, Suburb F (“the former matrimonial home”).
(d)The wife to vacate the former matrimonial home within 14 days of any final orders.
(e)The wife to pay the husband $920 as her contribution to one half of the valuation fees, together with an amount of $880 for costs thrown away pursuant to orders made on each 20 September 2021 and 20 January 2022.
(f)The husband to retain funds in the parties’ joint G Bank account (which with reference to the joint balance sheet is an amount of $9,544).
(g)The wife to be responsible for meeting the loan to her brother Mr H (which with reference to the joint balance sheet and determination made later in these reasons is an amount of $14,500).
(h)The parties to otherwise retain their respective separate assets and be responsible for their separate liabilities.
(i)Superannuation splitting orders effecting an equalisation of the parties’ superannuation entitlements.
During closing submissions, the wife’s counsel provided the court with a minute of proposed orders (Exhibit “W6”). By that document, the wife sought substantive orders which provided for:
(a)The parties to transfer their interest in the Suburb C property to the second respondent.
(b)The wife to transfer to the husband her interest in the former matrimonial home.
(c)The husband to discharge the mortgage registered over the former matrimonial home in the joint names of the parties.
(d)The husband to repay the parties’ loan to the wife’s brother Mr H.
(e)The husband to pay a settlement sum to the wife of $325,741, less the wife’s one-half share of valuation fees.
(f)The husband to retain the monies in the G Bank account.
(g)The wife to retain the furniture and effects in the former matrimonial home.
(h)The parties to otherwise retain their separate assets and be responsible for their separate liabilities.
(i)Superannuation splitting orders as proposed by the husband to effect an equalisation of the parties’ superannuation entitlements.
During closing submissions, the wife’s counsel promoted these orders on the basis of the wife’s contention that the interest she and the husband held in the Suburb C property together with the wife’s interest in the Country B property be excluded from the assets to be divided between the parties.
Additionally, during closing submissions, and acknowledging the challenges with the wife achieving her primary position, the wife’s counsel promoted alternate approaches to the division of property which shall be discussed later in these reasons.
ISSUES RELATING TO THE SECOND RESPONDENT
As earlier identified, the second respondent (by her litigation guardian) invited the Court to dismiss her claim. Orders were made to that effect by consent between all of the parties on 30 April 2024 (being day two of the trial), together with orders removing the second respondent as a party to the proceedings and orders excusing the second respondent from further participation in the proceedings, save and except as to any costs applications following the making of final orders.
A number of events however precipitated this position taken by the second respondent. In particular, a number of oral applications were made on the first day of trial. Rulings were made in relation to each of the oral applications, with reasons to publish in relation to those rulings at the same time as the judgment was published and orders made in relation to the substantive applications for adjustment of property between the husband and the wife.
Some context, however, should be given to all of these matters, to understand the rulings made and to give context to the reasons that follow in relation to each of these rulings.
As earlier identified:
(a)The Response filed by the second respondent on 1 July 2021 was fundamentally flawed. While never argued at the time the husband understood the flaws in the application, and this is why he immediately sought orders for summary dismissal of the Response.
(b)The orders sought by the second respondent were corrected by the Amended Response filed 7 February 2023. The orders sought by the document were on their face ones within the Court’s power to grant. This resulted in an abandonment of the husband’s summary dismissal application, and the reservation of his costs thrown away in pursuing the same.
I pause to note that the events just described took place at a time when no issue had been raised about the capacity of the second respondent; she was participating in the proceedings, and she was represented by a solicitor. That does not however mean that there were not any capacity issues in relation to the second respondent at that time, rather, it means that no such issues had at that stage been raised with the Court. Moreover, there is no evidence whatsoever before the Court to assist the Court in understanding this question.
I have a distinct recollection that at the hearings before me on 3 and/or 9 November 2022, I made strong overtures to the legal representative for the second respondent to obtain counsel’s advice in relation to the orders pursued by the second respondent, because on its face the orders set out in the Response filed 1 July 2021 were flawed. Those overtures were presumably heeded and resulted in the properly crafted orders sought in the Amended Response filed 7 February 2023.
Staggeringly, after Public Trustee was appointed the litigation guardian for the second respondent, and on 9 April 2024 in the lead up to trial (which commenced on 29 April 2024), a Further Amended Response was filed by the second respondent. By that document the second respondent sought the following orders:
1)That within sixty (60) days of this order the husband and the wife do transfer to the second respondent the whole of the interest held by them in the [Suburb C] property being the land described in Certificate of Title Volume […] Folio […] with the husband and the wife to be solely responsible for the costs of the transfer, including discharge of mortgage, registration of transfer, stamping free of duty, conveyance and PEXA fees.
2)That each party shall release the others from any liability for any claim that any may have against each regarding any interest in the [Suburb C] property, whether at law or in equity, and vested or contingent.
3)That each party shall do all such acts and things and sign such necessary documents that as be required to give effect to this order.
4)That it be a condition of this order that if any party shall refuse or neglect to execute any document necessary to give effect to the terms of this order within seven (7) days after that document has been provided to that party by another then a registrar or deputy registrar of the Federal Circuit and Family Court of Australia, on proof by affidavit of such refusal or neglect, is appointed by this order to execute and if in their (the registrar’s) opinion it is necessary to do so, to settle the document and do all such other acts and things and execute such other documents as necessary to give full force and effect to this order.
5)That each party pay their own costs of their and any other application.
Graphically (and in accordance with r 2.52 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) (“the Rules”), the amended document included in line-marked through text the earlier orders sought in each the Response filed 1 July 2021 and the Amended Response filed 7 February 2023 and was followed by the orders now pressed. This made it readily identifiable that the orders sought in the Amended Response filed 9 April 2024, save as to the omission of the preamble with the words “by way of property settlement”, were almost identical in their substantive form and effect to those that had been sought in the fundamentally flawed and properly abandoned Response filed 1 July 2021; particularly so far as the transfer of the husband and the wife’s interest in the Suburb C property to the second respondent was concerned.
Lest it not be obvious, the Court would only have power to make an order for the transfer of the husband and the wife’s interest in the Suburb C property to the second respondent, if, and only if, a declaratory order had been sought, and made, declaring that the husband and the wife hold their interests in the Suburb C property on trust for the second respondent (whether pursuant to s 78 of the Act, or as a consequence of the Court accruing jurisdiction to resolve that dispute); as had been correctly sought by the second respondent in her Amended Response filed 7 February 2023. This declaratory order however was abandoned by the Further Amended Response filed 9 April 2024, with the significant consequential effect that the Court had no power to grant the relief sought by the second respondent in her Further Amended Response filed 9 April 2024.
To compound this grave error on the part of the second respondent, her litigation guardian chose not to file any evidence whatsoever in support of the claim of the second respondent. This occurred despite the second respondent bearing the onus of proof in relation to that claim. The failure to file any evidence must also be seen in the context of the trial directions made 20 July 2023 and extended by orders made in chambers on 1 March 2024, at the request of the parties, for any affidavit (and any Amended Response) to be relied on at trial by the second respondent in support of her claim to be filed by 5 April 2024.
Importantly, the trial directions made 20 July 2023 also provided at Order 6:
That unless leave is otherwise given:
(a) The evidence in chief of all witnesses is to be given by affidavit;
(b)Any affidavit, save and except those of any expert, is not to include annexures/exhibits;
(c) Each party is permitted to rely on one affidavit only for each witness;
(d)No party shall be permitted to rely upon any affidavit or document that has not been filed in accordance with these orders.
(Emphasis added)
Moreover, and further compounding the problems with the manner in which the second respondent’s case was prosecuted, the Case Outline filed for the second respondent on 23 April 2024, did not identify any documents relied upon by the second respondent; curiously, not even the Further Amended Response filed late on 9 April 2024 (which although the point was not taken by the husband or the wife, leave was needed for that document to be before the Court by operation of r 1.33 of the Rules, which rendered the late filing of the document as being of no effect because it was out of time; a problem which affected various documents filed by each of the parties on the eve of trial).
The Case Outline filed on behalf of the second respondent is best described as cursory and of little assistance to the Court; simply identifying:
(a)Under the heading “Summary of Issues in Dispute”:
The disposition of the [Suburb C] property; The Second Respondent as beneficiary of a constructive trust pursuant to which the Husband and Wife hold their interest.
(b)Under the Heading “Summary of Argument”:
A constructive trust should be found arising from the circumstances applying to the disposition of the [Suburb C] property…
A constructive trust will be found where equity will treat as unconscionable, the denial of such trust by a party or parties.
Here, the Husband and Wife sought to protect their vulnerable sister from financial threat associated with her husband, by transferring from her sole name the fee simple in the [Suburb C] property. Subject matter, trustees, beneficiary and personal obligation touching the trust property, being the necessary elements of a trust, were therefore all present in this matter.
…
Contributions made by the Husband to improve the [Suburb C] property should be restored to him.
…
(Citations omitted)
Again, lest it not be obvious, there was no indication from the Case Outline as to the evidence and facts which grounded the second respondent’s contention that the husband and the wife held their interest in Suburb C property on trust for her. Simply asserting that the husband and the wife held their interest in the Suburb C property on trust for the second respondent, does not make it so; and particularly not so when no source of power to make orders transferring the husband and wife’s interest in the Suburb C property was identified.
Oral Applications and Rulings made at the commencement of the trial
Background
The first two days of the trial were entirely consumed by a combination by a number of oral applications and adjournments.
This circumstance was lamentable, particularly as there had been active case management of the proceedings prior to the commencement of the trial to ensure readiness. To that end, a case management hearing had taken place on 17 April 2024; just under a fortnight before the commencement of the trial. At that hearing the Court was assured by each of the parties that the proceedings were ready to proceed to trial.
These circumstances were all the more lamentable, because having reflected on the events discussed in the reasons that follow, the events which transpired during the hearings on 29‑30 April 2024 and 1 May 2024 left the distinct impression of a significant level of under‑preparedness on the part of each the wife and the second respondent. Moreover, the impression formed by the Court was that each the second respondent and the wife’s cases were being fashioned during the course of the hearing rather than having been properly considered and prepared well in advance of the final hearing.
When the trial commenced, counsel for the husband raised four preliminary matters:
(a)Firstly, that counsel for each of the parties had, immediately prior to the commencement of trial, provided my chambers with lists of objections to evidence upon which rulings were required.
(b)Secondly, an oral application was made to delay the commencement of the trial to enable instructions to be taken from the husband in relation to a voluminous bundle of documents (the “tender bundle”) not previously discovered but produced by way of disclosure by the wife after hours on Friday 26 April 2024 (being the Friday before the commencement of the trial on Monday 29 April 2024).
(c)Thirdly, following discussions with the wife’s counsel, the husband’s counsel was aware that the wife intended to rely upon documents produced pursuant to a subpoena to “[Ms S]” filed 8 February 2024, which she had not been provided copies of. In addition, she was aware from the same discussion of an intention to call Ms S in answer to the same subpoena to give evidence in the proceedings, about which she had seen no proof of evidence.
(d)Fourthly, counsel was also aware from discussions that she had with counsel for the wife and the solicitor appearing as litigation guardian for the second respondent that had occurred over the weekend preceding the trial, that they each might make an oral application to rely upon affidavits filed by the second respondent earlier in the proceedings, without an intention to make the second respondent available for cross examination; an application (if made), to which objection was taken by the husband.
In addition to these matters, counsel for the wife raised the following matters:
(a)An oral application to delay the commencement of the trial on the basis of:
(i)The provision late on Friday 26 April 2024 of a bundle of discovery form the husband, which required the assistance of an interpreter in order to take instructions from the wife.
(ii)The wife’s legal representatives (for reasons which are unclear), had not been aware that the husband had filed an affidavit in reply on 22 April 2024, and time was sought to have that document translated to the wife and instructions taken from her.
(b)A draft affidavit of Ms S had been prepared but not yet sworn, or served, and the wife wished to rely on that affidavit at the final hearing.
(c)An oral application was made to rely on the affidavits previously filed by the second respondent in the proceedings.
In the course of raising these issues, I raised my concerns with all of the parties about the following matters:
(a)The late provision of the husband and wife’s objections to evidence;
(b)The lack of evidence filed to support the claim of the second respondent;
(c)The source of power relied upon to make the orders for the transfer of the Suburb C property to the second respondent as sought by the second respondent;
(d)The lateness of issues relating to Ms S’s evidence and the lack of procedural fairness afforded to the husband in relation to the evidence of Ms S, but also as to the balance of issues that had been raised by the husband’s counsel.
In response to the Court’s concerns regarding the jurisdiction of the Court to make the orders for the transfer of the Suburb C property sought by each the wife and the second respondent, the following exchange ensued between the wife’s counsel and the Court (commencing at Transcript 29 April 2024, p. 14, line 21):
[WIFE’S COUNSEL]: … these orders are sought on the basis of the court’s accrued jurisdiction. The court, in my submission, does have jurisdiction to deal with a third- party claim where the determination of the matrimonial property settlement is inextricably tied to it, and it is necessary, in my submission, to determine that in order – in order to determine what is just and equitable between the parties.
…
[WIFE’S COUNSEL]: … that the Public Trustee as litigation guardian of the second respondent is pressing a claim, an equitable claim, of constructive trust in relation to the [Suburb C] property. And we say that that question of constructive trust, whether it exists or not, needs to be determined by this honourable court in conjunction with, and before your Honour rules, on the matrimonial property settlement between the husband and wife.
HER HONOUR:… Where is it that this court is being asked to make a declaration that the parties hold their interest, presumably in the [Suburb C] property on trust? Where do I see that in the applications before the court?
…
HER HONOUR: … The applications, or the responses, filed at your end and at the second respondent’s end, seek a transfer of property of the party’s [sic] interest in the [Suburb C] property. They are not ancillary to any other orders or declarations that are sought. It is simply an order for a transfer. So I will ask the question again, what is the basis upon which those applications and the power that this court is being asked to exercise, [counsel for the wife], because at the moment the applications are fundamentally flawed from where I sit. You might tell me otherwise and you might enlighten me but, at the moment, they appear fundamentally flawed, from my perspective.
…
[WIFE’S COUNSEL]: Your Honour, the application for transfer, I submit, is based on the second respondent’s claim for equitable relief from this court.
HER HONOUR: I know that but no one has asked the court to make a declaration that either the husband or the wife hold their interest in the [Suburb C] property on trust for the second respondent. That’s why I’m raising these issues because I would have thought that any claim for such equitable reliefs – relief, rather, relies on that declaration being made. Does it not?...
[WIFE’S COUNSEL]: Your Honour, it is in my submission, clear from the affidavit material of my client, that she supports the claim of the second respondent on the basis of an equitable claim or constructive trust and that ‑ ‑ ‑
HER HONOUR: No one has sought the declaration, [counsel for the wife]. That is, frankly, an insurmountable hurdle, I would have thought, is it not?
[WIFE’S COUNSEL]: Your Honour, insofar as your Honour sees it as such, we would seek leave orally to amend the orders sought in ‑ ‑ ‑
HER HONOUR: Well, [counsel for the husband] might have something to say about that as well…
Following these exchanges, the solicitor appearing as litigation guardian for the second respondent also made an oral application to rely on the earlier affidavits filed by the second respondent. No other submissions were made in relation to the jurisdiction of the Court to make the orders sought by the second respondent in the Amended Response.
In that regard, the following exchange took place (commencing at Transcript 29 April 2024, p. 18, line 31) :
[LITIGATION GUARDIAN]: I will be seeking to rely on the affidavit evidence of [the second respondent] to be received [de bene esse]. I’m not sure how that can be translated, your Honour. And ‑ ‑ ‑
HER HONOUR: Where do I find in the outline that was filed last week any reference to an intention to rely on earlier filed affidavit material?
[LITIGATION GUARDIAN]: You do not, your Honour, and I can only say that I hoped to rely upon the work of my friend, [counsel for the wife], in coming to my position in relation to my outline. However ‑ ‑ ‑
HER HONOUR: I’m troubled by that submission. It’s your client’s claim that the parties’ legal interests in property are not as they seem and she is seeking relief. I’ve already made the point about the problems, as I see them. And I am troubled by a submission that you are relying – or were relying on the work to be done at the wife’s end in pursuing your claim.
[LITIGATION GUARDIAN]: I note that, your Honour
HER HONOUR: Well, it might have some consequences, [Mr N].
…
HER HONOUR: Leaving aside that the witness isn’t available for cross-examination, the mere presence of a litigation guardian speaks to capacity issues. And so at your end you are asking the court to give weight to evidence which has not – is not able to be tested and evidence which is clouded by capacity difficulties. And I see that as potentially fatally problematic. And I suspect that’s why [counsel for the husband] is taking the point…
At that point of the hearing, the applications for a delayed commencement of the trial were granted, and no other rulings on the range of issues raised by each of the parties were made.
When the hearing resumed counsel for the husband took formal objections to any oral applications made/or that might be made, relating to the following:
(a)The oral application made by the wife and the second respondent to rely on the earlier affidavit material filed by the second respondent.
(b)The oral application made by the wife to amend her application.
(c)Any leave that might be sought by the wife to rely on the documents produced in the tender bundle on the Friday prior to the commencement of the trial.
(d)Any leave that might be sought by the wife to file an affidavit of Ms S.
Counsel for the wife then confirmed and/or made the following oral applications:
(a)Leave to rely on the earlier affidavits filed by the second respondent.
(b)Leave to rely on the documents produced late by the wife in the tender book.
Submissions were then heard from the solicitor appearing as litigation guardian for the second respondent, wherein for the first time, it not having been raised prior to the morning adjournment, the second respondent submitted that the relief sought by the second respondent could be granted by the Court exercising “accrued jurisdiction”. The submissions that were put in that regard were confused and erroneous in principle. The exchange is set out in full as it sheds light on the rulings that were ultimately made (commencing at Transcript 29 April 2024, commencing at p. 27, line 6):
[LITIGATION GUARDIAN]: Your Honour, I will be arguing at a time that your Honour sees fit the jurisdictional point.
HER HONOUR: Well, tell me what you mean by that.
[LITIGATION GUARDIAN]: So your Honour, as I understand it, doubts the basis on which this court can make orders other than under section 79 as between the husband and the wife.
HER HONOUR: No, don’t misunderstand me... What I’ve said is that the orders for the transfer of the property – the husband and the wife’s interests in property to your client as a result of an argument being pressed at your end that there is a constructive trust and that they hold their legal interests on trust for your – for the second respondent.
[LITIGATION GUARDIAN]: Yes.
HER HONOUR: I understand that case. I understand it. The problem is the declaration to that effect has not been sought. Now, if the transfer is sought for some other reason other than the constructive trust assertion that appears in at least the wife’s documents and your outline, then tell me…
[LITIGATION GUARDIAN]: Your Honour, when I reviewed the documents provided to me in this matter it was not my intention to strike out the prayer for relief under section 78. I see that that has ‑ ‑ ‑
…
[LITIGATION GUARDIAN]: That strikeout occurred, and it was done by inadvertence. I am to blame for that inadvertence. I would ask that – orally that the court restore that particular prayer for relief. I would ask that the court restore that prayer for relief. I make that application orally. If your Honour is against me ‑ ‑
HER HONOUR: Well, which aspect are you seeking to reinstate, so that I’m clear about it and [counsel for the husband] is clear about it? Because there is more than one order sought – declaratory order sought, pursuant to section 78, in the version of the response filed on 7 February 2023, which is the subject of striking out in the most recent amendment.
[LITIGATION GUARDIAN]: Excuse me, your Honour
HER HONOUR: And the most recent amendment is that filed 9 April, 2024…
…
HER HONOUR: Paragraphs 1 to 5 of the amended response filed on 7 February 2023.
[LITIGATION GUARDIAN]: So that beginning – that pursuant to section 78. So I would ask that your Honour restore 1, 2 and 3 of those.
HER HONOUR: Not paragraph 4.
[LITIGATION GUARDIAN]: No.
HER HONOUR: All right. Thank you. Well, that’s, I think, what [counsel for the father is] opposing.
[LITIGATION GUARDIAN]: Yes.
HER HONOUR: But I will hear submissions about that when we come back. I will pause there for the interpreter. Is there anything else you want to put to me at this juncture…?
[LITIGATION GUARDIAN]: If your Honour is against me, I would seek to make some submissions about Warby & Warby.
HER HONOUR: What do you want to tell me about Warby & Warby?
[LITIGATION GUARDIAN]: In that matter, the Full Court determined that:
When considering whether this court should consider exercising accrued jurisdiction, the appropriate steps are to consider whether it is appropriate to exercise such jurisdiction.
HER HONOUR: Jurisdiction to do what?
[LITIGATION GUARDIAN]: To do something other than a matrimonial cause order.
HER HONOUR: But, again, the relief you seek relies on the declaration that the husband and the wife hold their interests on trust for your client because you haven’t put to me any other basis upon which the transfer of their interests is sought.
[LITIGATION GUARDIAN]: Your Honour, I was partway through and I will finish by saying, in Warby, the court makes clear that the circumstances associated with the relief sought should first be considered and then the relief in terms of remedies, such as declaratory remedies will then be available ‑ ‑ ‑
…
[LITIGATION GUARDIAN]: Will then be available to the court because of its exercise of that accrued jurisdiction.
HER HONOUR: Well, I’m not – I’m sorry... I’m not following you and you’re going to have to develop that submission because the remedy that you seek in relation to the transfer of the husband and the wife’s interests in [Suburb C] is only sought at your end as a result of an equitable claim that they hold their interest in the property on a constructive trust ‑ ‑ ‑
[LITIGATION GUARDIAN]: Correct.
HER HONOUR: ‑ ‑ ‑ for your client.
[LITIGATION GUARDIAN]: Correct.
HER HONOUR: So the remedy is, firstly, the declaration as to the same and, thereafter, the transfer, is it not?
[LITIGATION GUARDIAN]: Yes, your Honour.
HER HONOUR: Okay. So if you haven’t – if I’m against you about letting you amend to seek the declaration, then what accrued jurisdiction am I exercising? That’s the bit I’m having difficulty with. I know what Warby says, I know that this court can accrue jurisdiction, but what I’m asking you is what is the basis for that, if I’m against you, about the amendment? Doesn’t your case fall away if I’m against you? That’s the real question...
[LITIGATION GUARDIAN]: With respect, no, your Honour. The pleadings are not the final word and the court can fashion a remedy without there having been a prayer for relief under the Family Law Act. And that’s what was decided in Warby, with respect.
HER HONOUR: I’m having a sense of déjà vu. You won’t know this but I remember it, [the husband’s counsel] will remember it, her instructor and her client will remember it, and I suspect [the wife’s counsel] will remember it. I will pause for the interpreter. But the amendment to your client’s application or the second respondent’s application of 7 February 2023 came about because the application, as it was drafted prior to that, was listed for a summary dismissal argument and, on the death knell, the amendment was made and I urged [the second respondent’s then solicitor] to take advice about the application and the amendment was made. Here we are with those amendments having been struck out and the same problem that raised its head to me in November 2021, I think it was, manifest today on the first day of trial and we are having the same discussion that I had when I first called this matter on before me.
[LITIGATION GUARDIAN]: Your Honour, with respect, I consider that the cart should not be put before the horse in looking at Warby.
HER HONOUR: What does that mean?
[LITIGATION GUARDIAN]: One can’t limit accrual of jurisdiction on the basis that, in this case, a particular prayer for relief has been sought or not.
HER HONOUR: Parties in any litigation… are constrained by the orders that they ask the court to make, are they not?
[LITIGATION GUARDIAN]: Yes, your Honour
HER HONOUR: Well, I am raising with you a problem with the orders as presently crafted at your end. I’m either with you about an oral amendment and/or a reinstatement, as you called it, or I’m not. If I’m not, then you will be held to the orders as they’re crafted.
[LITIGATION GUARDIAN]: Yes, your Honour.
The erroneous legal principle in the submissions made by the solicitor appearing as litigation guardian for the second respondent, and ultimately conceded in the passage of transcript just quoted, is that it is a fundamental tenet of the adversarial system of justice (as discussed later in these reasons) that a litigant pursuing relief from the court identify the relief they seek, and that they put evidence before the court to satisfy the court that the relief they have sought, be granted. It is not for the adjudicator to hear the evidence and thereafter craft the relief to best fit the evidence that has been adduced.
Ultimately the proceedings were stood down for a luncheon adjournment on the basis that when the hearing resumed, the Court would hear argument in relation to three oral applications as follows:
(a)The oral application of the second respondent to reinstate paragraphs of the Amended Response of the second respondent filed in February 2023;
(b)The oral application of the second respondent and the wife to rely on earlier filed affidavits by the second respondent on each 12 May 2021 and 7 December 2021; and
(c)The oral application of the wife to rely on documents discovered in a tender bundle out of time and out of hours on Friday 26 April 2024.
Application by the second respondent to amend the Amended Response filed 9 April 2024
The application to amend the second respondent’s Amended Response filed 9 April 2024 was made on the basis that proposed orders 1-3 in the Amended Response filed 7 February 2023 be reinstated, and that all of the orders sought in the Further Amended Response filed 9 April 2024 be struck out.
The oral application of the second respondent was supported by the wife.
The second respondent submitted that leave was sought pursuant to r 2.50 and with regard to r 1.04(1).
Rule 2.50 provides:
2.50 Amendment by a party or court order
(1)A party who has filed an application or response may amend the application or response:
(a) for an Initiating Application (Family Law):
(i)at any time before the procedural hearing at which the proceeding is allocated a date or dates for trial; or
(ii) at a later time, with the consent of the other parties or by order;
(b) for an Application in a Proceeding:
(i) at or before the first court date; or
(ii)at any later time, with the consent of the other parties or by order; and
(c)for all other applications—at any time, with the consent of the other parties or by order.
(2) A party who:
(a)has filed an Initiating Application (Family Law) or a Response to an Initiating Application (Family Law); and
(b)seeks to add or substitute another cause of action or another person as a party to the proceeding;
must amend the form in accordance with this Part.
(3)If a date is set for a further procedural hearing, the party amending the Initiating Application (Family Law) or Response to an Initiating Application (Family Law) under subrule (2) must give each other party written notice of the hearing.
Rule 1.04 provides:
1.04 Overarching purpose
(1)The overarching purpose of these Rules, as provided by section 67 of the Federal Circuit and Family Court Act, is to facilitate the just resolution of disputes according to law and as quickly, inexpensively and efficiently as possible.
(2) Parties to family law proceedings must conduct the proceeding (including negotiations for settlement of the dispute to which the proceeding relates) in a way that is consistent with the overarching purpose.
(3)A party’s lawyer must, in the conduct of a proceeding before the court (including negotiations for settlement) on the party’s behalf:
(a)take account of the duty imposed on the party referred to in subrule (2); and
(b) assist the party to comply with the duty.
(Notes omitted)
The solicitor appearing as litigation guardian for the second respondent variously submitted that the application to amend should be allowed for the following reasons:
(a)There had been an inadvertent striking through on his part of the declaratory relief sought pursuant to s 78 of the Act, when filing the Further Amended Response on 9 April 2024.
(b)The amendment made on 9 April 2024, had only recently been made and on the court file for such a short period of time and as such the husband “has not been put to significant expense and difficulty”.
(c)At all times “both in court and in correspondence” the second respondent “asserted a right” to relief to protect an interest held by the husband and the wife on trust for the second respondent.
(d)The Court has the power to grant the amendment in circumstances where the “loss or difficulty occasioned to other parties is not so great to make impossible for the consideration of all relevant matters raised by the litigation”.
In making these submissions, the following exchange occurred (commencing at Transcript 29 April 2024, p. 35, line 22):
[LITIGATION GUARDIAN]: … I would simply say that the purpose of the amendment is to agitate accrued jurisdiction.
HER HONOUR: Accrued? I’m going to ask you again now: accrued jurisdiction to do what? If the remedy – if this these proceedings were being run over the road somewhere, what orders would you be inviting another court to make?
[LITIGATION GUARDIAN]: I would be seeking a declaration as to constructive trust, you Honour, and then ‑ ‑ ‑
HER HONOUR: The consequential orders of a transfer?
[LITIGATION GUARDIAN]: Yes.
HER HONOUR: So no different remedy to that which is not pleaded under the Family Law Act?
[LITIGATION GUARDIAN]: Correct.
HER HONOUR: All right. Well, at least we’re on the same page about that. But, again, when you addressed me earlier about accrued jurisdiction, I commented that I was a little confused and I was confused because I was wondering whether there was some other remedy that was being sought.
[LITIGATION GUARDIAN]: No. No, your Honour. No.
HER HONOUR: But it is still the declaratory relief and then the transfer orders ‑ ‑ ‑
[LITIGATION GUARDIAN]: Yes.
HER HONOUR: ‑ ‑ ‑ as a consequence of the declaratory relief.
[HER HONOUR]: So, either way, the arguments about accrued jurisdiction all hang off the declaratory order which is not sought in the amendment made a couple of weeks ago.
[LITIGATION GUARDIAN]: Correct.
Taking all of these matters into account, I do not consider it appropriate to notionally add-back any amounts.
Quantum of Loan to Wife’s brother
There is a minor difference between the parties of the amount owing to the wife’s brother Mr H; the husband asserting a figure of $14,500 and the wife asserting a figure of $15,000.
It is however unnecessary for the court to resolve this dispute, as the wife accepted the figure of $14,500 during her oral evidence.
Financial Resource
Whilst the parties included as an item on the balance sheet under the heading “Financial Resource” which was identified as the wife’s “Interest in estate of late [Ms U]”, no submissions were made in relation to the same and it shall be excluded from consideration.
FINDINGS AS TO THE PROPERTY TO BE DIVIDED BETWEEN THE PARTIES
In light of all of the findings discussed in these reasons, I find the property of the parties to be as follows:
ASSETS Ownership Description Value 1 J Suburb F property $820,000 2 J Interest in Suburb C property $372,960 3 W Interest in Country B property $564,768 4 J Furniture & Effects in FMH $5,000 5 J G Bank Savings (#…40) $9,544 6 H CBA Savings (#…02) $16,952 7 W NAB Savings (#…07) $200 8 H Motor Vehicle 2 $600 9 W Motor Vehicle 1 $500 10 W Motor Vehicle 4 $6,000 11 H Motor Vehicle 3 $200 12 W Jewellery $2,000 13 W Unauthorised withdrawal from home loan account (#…80) $8,500 Total $1,807,224
LIABILITIES Ownership Description Value 14 J Suburb F mortgage (Fixed - #…80) $141,689 15 J Suburb F mortgage (Variable - #…29) $38,360 16 J Debt to second respondent $0 17 J Loan from wife’s brother Mr H $14,500 18 H Mastercard $0 Total $194,549
SUPERANNUATION Member Name of Fund Value 19 H Super Fund 1 $307,000 20 W Super Fund 1 $45,628 21 H Addback of superannuation drawn 2024 & applied for H’s legal fees $33,000 22 H Addback of superannuation drawn 2023 $10,109 Total $395,737
Taking into account these amounts I find:
(a)The total value of the non-superannuation assets of the parties is $1,807,224;
(b)The total value of the liabilities of the parties is $194,549;
(c)The net value of the non-superannuation assets of the parties is $1,612,675; and
(d)The net value of the parties’ superannuation entitlements is $395,737.
THE CONTRIBUTIONS OF THE PARTIES
There was no dispute between the parties that they each came into the marriage with nominal assets and/or liabilities, and that the items reflected in the balance sheet have been accumulated over the course of their long marriage.
There equally appeared to be no dispute between the parties that the husband was the primary bread winner for the family, albeit that the wife worked at various times, and otherwise was responsible for homemaking and parenting, with the husband contributing to the same when he was not working.
The parties’ contributions to the Suburb C property have been discussed earlier in these reasons and I do not propose to repeat those findings here. I do however identify:
(a)That I am not in a position to make any findings as to whether the consideration paid by the parties at the time of their acquisition of their interest in the Suburb C property was for market value or not, in circumstances where:
(i)No expert valuation evidence as to the historic market value of the property at the time the parties acquired their interest in the property was put before the Court, beyond the information as stamped on the transfer document itself;
(ii)It is not clear what, if any, financial arrangements in place for the property, from the time the parties acquired their interest (as earlier discussed), were implemented to act as a further financial contribution by the parties towards the acquisition of their interest in the property (given the second respondent was throughout that time making no financial contributions whatsoever), as the husband appears to assert. Moreover, because of the lacuna in the evidence about these arrangements, it is difficult to reconcile with any precision the impact of these arrangements so far as the overall contributions made by the parties to the Suburb C property.
It also appears an agreed fact that the parties, throughout the relationship, provided significant financial and other support to the wife’s family members. In that regard I am satisfied that:
(a)Implicit in the entire arrangements in relation to the Suburb C property concerning the husband and the wife is a financial responsibility on their part to meet the financial needs from time to time of the second respondent;
(b)These financial responsibilities and support extended to the wife’s brothers who resided in the Suburb C property, where it appears an agreed fact between the parties that they did so for at best the payment of less than market rent and/or the intermittent payment of less than market rent;
(c)Additionally, the parties agree that after the wife’s brother’s vacated the Suburb C property, the parties borrowed monies (a liability which remains owing and has not been forgiven by the wife’s brother, Mr H) to carry out repairs and improvements to the property to make good damage and disrepair caused by the wife’s brothers to the property; with the labour for these works carried out by the husband;
(d)The parties additionally provided housing, care and support to the second respondent, particularly during the period of time that she resided with the parties between 2017 and mid-2019; and
(e)The wife travelled to Country B frequently to visit and/or provide support to her family members living there (including her parents), and at those times the husband was solely responsible for homemaking and parenting of the parties’ children.
I accept that the wife’s interest in the Country B property was one inherited by her in 2018 on the death of her mother. I equally accept that in terms of value, it is a significant injection of an asset by the wife (relative to the balance of the property of the parties), late in the relationship.
In the post separation period, I accept that the parties have continued living together in the jointly owned former matrimonial home. However, in that regard I am satisfied that the husband has made ongoing financial contributions to the conservation of the former matrimonial home as he has solely met the mortgage payments, together with the various outgoings for the property.
In addition, in the post separation period, the husband has continued to contribute to his superannuation entitlements over and above his employer’s compulsory contributions.
I also accept that the husband has:
(a)Voluntarily reduced the parties’ liability to the wife’s brother Mr H in the amount of $5,500; and
(b)For a period of two years, voluntarily paid the wife a sum of $300 each month to assist in her meeting her personal expenses when she was otherwise not in receipt of Centrelink benefits.
Balancing the miscellany of contributions of the parties, I find that the contributions of the parties be assessed at 60 percent to the wife and 40 percent to the husband.
RELEVANT S 75(2) FACTORS
There are a number of uncontroversial facts which I accept as follows:
(a)The parties’ relationship has subsisted for 29 years.
(b)The husband was 60 years old at the time of trial and the wife is between one to four years younger than the husband.
(c)The parties are both in relatively good health.
(d)The husband is currently working in a technical role.
(e)The wife is currently unemployed.
So far as the husband’s employment is concerned, I am satisfied that:
(a)His regular work hours see him earn a base income of no less than approximately $70,000 per annum.
(b)The husband has worked overtime, and certainly he has done so across the post separation period to assist the payment of his legal expenses. That overtime has seen him earn approximately between an additional $10,000-$20,000 per annum.
(c)Given the husband’s age, I accept that his ability to continue working the hours that he does, particularly the overtime hours, is not a long-term reliable source of additional income for him; particularly in light of his physical fitness to do so, which did not appear to be disputed by the wife.
In relation to the wife’s capacity to work, I am satisfied that:
(a)The wife is of limited skills.
(b)Her age and work history, including devoting herself to the care of the children, does not lead me to consider that the wife has the capacity to earn a meaningful income.
Turning to the wife’s interests in relation to both the Suburb C property and the Country B property:
(a)Given the parties’ interest in the Suburb C property is held together with the wife’s sister, I consider it appropriate for the husband’s interest in the Suburb C property to be transferred to the wife, so as to bring an end to the financial ties between the husband and the wife.
(b)I accept that the wife considers that she has a moral obligation to retain her interests in both the Suburb C property and the Country B property, such that she does not consider that she can liquify her interests in each of those properties. The wife however has no legal obligation to do so and I am satisfied that she could take steps to liquify her interests in both properties if she wished to do so.
(c)I am equally satisfied that as a family group, the wife and her siblings consider they each have an obligation to support each other, both financially and in terms of housing; something that is uncontroversial has occurred throughout the parties’ relationship both in relation to the housing provided to the wife’s brother’s both in Australia, and those residing in the Country B property, and, in addition, so far as financial support that has occurred with the parties having borrowed money form the wife’s brother, Mr H, the assistance the wife’s sister has provided in terms of education to the parties’ children, and the parties themselves assisting the second respondent at various times both financially and so far as her housing is concerned. In light of all of these matters, I am satisfied that if as a family group the wife and her siblings do not wish to sell the Country B property, and/or if the wife does not wish to liquify her legal interests in either the Suburb C property, or the Country B property, then as a family group appropriate arrangements shall be made amongst the family group to meet the wife’s housing needs.
(d)The wife’s evidence that she has not yet, but intends to discuss residing in the Suburb C property with the second respondent satisfies me that this option remains open to her.
It is the husband’s case that he wishes to retain the former matrimonial home. I accept his assertions that he has made enquiries as to his borrowing capacity and that he is able to borrow funds totalling approximately $430,000. In light of the same, I am satisfied that there is some significant capacity for the husband to retain the former matrimonial home and for his housing to be secure.
It is the parties’ mutual evidence that their child Ms X, who was 20 years of age at the time of trial, continues to live in the former matrimonial home and that she has some significant needs, which are likely to fall to the husband to meet so far as her housing, financial and non-financial assistance is concerned. She is, however, in receipt of Centrelink benefits. The parties, however, mutually agree that Ms X is likely to require the assistance of the husband, particularly so far as housing and financial assistance well into the future; the husband saying indefinitely, and the wife accepting this is the case for at least the next five or so years.
In light of all of the matters, I consider it appropriate to make a further adjustment of 2.5% in favour of the wife; rendering a 62.5/37.5 overall adjustment in favour of the wife of the non‑superannuation assets.
MIX OF ASSETS TO BE RETAINED BY THE PARTIES & EFFECT OF ORDERS
As earlier identified, the parties agree that there be superannuation splitting orders to effect equality between them. I am satisfied that in weighing the parties’ overall contributions and future needs factors in relation to superannuation entirely accumulated by each of them over the course of a long marriage, that this is a just and equitable outcome. I am also satisfied that procedural fairness has been afforded in relation to the proposed superannuation splitting orders.
In relation to the non-superannuation assets, a 62.5/37.5 division in favour of the wife, in light of my earlier findings, would see:
(a)The wife retaining net assets of $1,007,922; and
(b)The husband retaining net assets of $604,753.
The wife wishes to retain the furniture and effects of the parties and this is not in dispute between them.
I consider that the wife should retain the savings in the parties’ joint G Bank account, together with the other items of property held in her sole name.
Accordingly, the assets and liabilities to be retained by the wife are as follows:
Interest in Suburb C property $372,960 Interest in Country B property $564,768 Furniture & Effects in FMH $5,000 G Bank Savings (#…40) $9,544 NAB Savings (#…07) $200 Motor Vehicle 1 $500 Motor Vehicle 4 $6,000 Jewellery $2,000 Notional Property added back $8,500 Loan from wife’s brother Mr H ($14,500) NET ASSETS RETAINED BY THE WIFE $954,972
The assets to be retained by the husband are as follows:
Suburb F property $820,000 CBA Savings (#...02) $16,952 Motor Vehicle 2 $600 Motor Vehicle 3 $200 Suburb F mortgage (Fixed - #...80) ($141,689) Suburb F mortgage (Variable - #...29) ($38,360) NET ASSETS RETAINED BY THE HUSBAND $657,703
A 62.5% division to the wife, necessitates a payment by the husband to the wife in the amount of $52,950.
I am conscious that at the time of trial the husband had personal savings in the amount of $16,952, which he is to retain. In addition, the husband gave evidence that he is able to borrow funds up to a limit of $430,000. Assuming that the husband will need to borrow funds to meet some or all of the payment to the wife, the total borrowings he will need to make (inclusive of those funds already the subject of the mortgages), is an amount of no more than approximately $232,999; an amount well within his borrowing capacity.
I am also mindful that the parties have outstanding legal fees and/or loans for legal fees that they will be obliged to meet out of their respective entitlements. Where the husband is concerned, that is an amount of $50,000-$60,000 (per his costs notice filed 19 April 2024) and where the wife is concerned, that is an amount of approximately $50,000 according to her counsel. These amounts owed by the husband are able to be satisfied by the husband from additional borrowings on the home loan, and by the wife from the cash payment that she is to receive from the husband.
In addition, there is agreement between the parties that adjustments for costs orders previously made and the wife’s share of valuation fees, should be deducted from any payment to be made by the husband to the wife. In addition to that agreed amount, I shall also deduct from the cash payment to be made, the amount owing by the wife to the husband for the costs thrown away during the trial, as discussed earlier in these reasons. Those amounts are as follows:
(a)Pursuant to orders made on each 20 September 2021 and 20 January 2022, a costs order was made on each occasion in favour of the husband in the amount of $880 ($1,760 combined);
(b)Pursuant to orders made 9 November 2022 the parties were to share in the cost of the single expert valuation expenses. In that regard:
(i)There is no dispute between the parties that the cost paid by the husband to value the Suburb C property was an amount of $1,540, with the wife to reimburse the husband one half of the same in the amount of $770.
(ii)The husband additionally paid the sum of $300 for the valuation of the Country B property. The wife does not consent to any contribution to the payment of the same. However, given her evidence that she agreed to and signed the letter of instruction, I consider it appropriate that she contribute one half of this expense in the amount of $150.
(c)The following amounts totalling $4,955 for costs thrown away during the trial, as discussed earlier in these reasons :
(i)$1,659; and
(ii)$3,296.
As the parties continue to reside separately and apart in the former matrimonial home, the parties urged the Court to give consideration to the timing of the wife vacating the former matrimonial home following the making of orders; with the husband submitting that 14 days was sufficient and the wife asking for three to four months.
I accept the submissions of the husband that the wife has been on notice for some considerable time that she would need to vacate the former matrimonial home upon resolution of these proceedings; it being an agreed position that she did not wish to retain the property.
However, despite the passage of time in the resolution of the proceedings, and my delays in delivering these reasons (which in addition to issues pertaining to the second respondent earlier identified, there was also a conscious delay on my part not to deliver the reasons proximate to Christmas or the January period, due to the wife’s need to rehouse herself), I consider that a period of 35 days from the date of orders to be sufficient time to enable the wife to source alternate accommodation and make arrangements to have the furniture and effects in and about the former matrimonial home removed.
Taking all of these matters into account, I am satisfied that the orders that I propose to make are just and equitable.
REFERRAL OF THE SOLICITOR APPEARING AS LITIGATION GUARDIAN FOR THE SECOND RESPONDENT
On its face, the manner in which the second respondent’s case was prosecuted was wholly inadequate; and fatally so vis-à-vis any claim that the second respondent might have against the husband and/or the wife in relation to the Suburb C property both in terms of these proceedings, but for all time, given the dismissal of the application.
In addition to the matters discussed earlier in these reasons, and in light of the history of the litigation regarding the claim of the second respondent, the submissions made by the practitioner that he “did not pay much attention to what happened before my involvement” (Transcript 29 April 2024, page 69, line 17) were particularly troubling.
Moreover, and of equal concern, after argument was heard in relation to the oral applications discussed at [56]-[133] above, and at the point in time that the Court reserved its decision, the following exchange took place with the practitioner (Transcript 29 April 2024, p. 77, commencing line 9):
HER HONOUR: Thank you… anything further?
[LITIGATION GUARDIAN]: Only to say, your Honour, that I expected, until the weekend, that [Ms Goldschmidt] would be present today, and would seek to give evidence. And I was going to make an assessment, as counsel, of the appropriateness of calling her at that time. So I say that in response to assertions that ‑ ‑ ‑
HER HONOUR: That’s a pretty serious submission you’re putting now, as I’m about to reserve – particularly, when it does not appear to be in dispute that there are capacity issues, and I don’t know what qualifications you have… to make an assessment about the second respondent’s capacity to give evidence. And thirdly, I might have thought that that would have been something that might have been addressed in your outline or in your submissions earlier today. I will adjourn the court. Thank you.
In light of the matters discussed throughout these reasons, I consider it appropriate to refer the legal practitioner that appeared for the litigation guardian to the relevant solicitor’s regulatory body. In doing so the Court shall provide a copy of these reasons, the transcript from the hearing on 29 April 2024 and the relevant portions from the hearing on 30 April 2024.
In making this referral, I am particularly troubled by the appearance that a vulnerable person who had the protection of a litigation guardian (no less than the Public Trustee whose role it is to act in these very circumstances), was so poorly represented and/or protected.
It is for all of these reasons that I also consider it appropriate that a referral be made to the Public Trustee.
Consideration shall be given in chambers to any request by the regulatory body and/or the Public Trustee to view and/or copy any further documents on the Court file, on application, on a case-by-case basis if such application is made.
I certify that the preceding two hundred and fifty-two-one (252) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Kari. Associate:
Dated: 14 February 2025
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