KINNON & KINNON

FAMILY COURT OF AUSTRALIA

KINNON & KINNON

[2020] FamCA 1017

FAMILY LAW – PROPERTY – Where the respondent failed to appear at the hearing – Where final property orders are made on an undefended basis.

Family Law Act 1975 (Cth)

APPLICANT:

Ms Kinnon

RESPONDENT:

Mr Kinnon

FILE NUMBER:

BRC

10443

2019

DATE DELIVERED:

3 August 2020

PLACE DELIVERED:

Brisbane

PLACE HEARD:

Brisbane

JUDGMENT OF:

Forrest J

HEARING DATE:

3 August 2020

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr Selfridge

SOLICITOR FOR THE APPLICANT:

Ms Hannant
Steadfast Solicitors

THE RESPONDENT:

No Appearance

Orders

IT IS ORDERED

Superannuation Splitting Orders

C Superannuation

That the Applicant Wife shall be entitled to a payment split of the Respondent Husband’s superannuation account held with “Q Super” with Member Name “Mr Kinnon” and Member number …29 (“the Super Fund”) in accordance with the Family Law Act 1975 (Cth) and the Family Law (Superannuation) Regulations 2001 (Cth) and in respect thereof:
(a)pursuant to s 90XT(4) of the Family Law Act 1975 the base amount of $174,000.00 from “Q Super”, shall be allocated to the Applicant Wife in respect of the Respondent Husband’s superannuation interest in the Super Fund;
(b)pursuant to s 90XT(1)(a) of the Family Law Act 1975, whenever a splittable payment becomes payable in respect of the Respondent Husband’s superannuation interest in the Super Fund, the Applicant Wife shall be entitled to be paid the amount calculated in accordance with Part 6 of the Family Law (Superannuation) Regulations in respect of that base amount specified in Order 1(a) above and there shall be a corresponding reduction in the entitlement the Respondent Husband would have had but for this Order;
(c)the operative time for the purpose of Order 1(a) above is four (4) business days after the Trustee receives a signed and certified true copy of the final Order;
(d)pending payment to the Applicant Wife under Orders 1(a) and 1(b) above or the rolling over of the Applicant Wife’s entitlement, the Respondent Husband shall be restrained from dealing with, charging, encumbering or disposing of any entitlements he has under the Super Fund other than in accordance with the terms of these Orders or with the consent of the Applicant Wife, such consent not to be capriciously or arbitrarily withheld;
(e)this Order shall be binding upon the Respondent Husband, his heirs, executors, administrators and personal representatives; and
(f) Orders 1(a), 1(b) and 1(c) shall bind the Trustee of the Super Fund.

B Superannuation

The Applicant Wife shall be entitled to a payment split of the Respondent Husband’s superannuation account held with B Superannuation with Member Name “Mr Kinnon” and Member number …95 (“the B Superannuation”) in accordance with the Family Law Act 1975 (Cth) and the Family Law (Superannuation) Regulations 2001 (Cth) and in respect thereof:
(a)pursuant to s 90XT(4) of the Family Law Act 1975 the base amount of $10,000.00 from B Superannuation, shall be allocated to the Applicant Wife in respect of the Respondent Husband’s superannuation interest in the B Superannuation;
(b)pursuant to s 90XT(1)(a) of the Family Law Act 1975, whenever a splittable payment becomes payable in respect of the Respondent Husband’s Superannuation interest in the B Superannuation, the Applicant Wife shall be entitled to be paid the amount calculated in accordance with Part 6 of the Family Law (Superannuation) Regulations in respect of that base amount specified in Order 2(a) above and there shall be a corresponding reduction in the entitlement the Respondent Husband would have had but for this Order;
(c)the operative time for the purpose of Order 2(a) above is four (4) business days after the Trustee receives a signed and certified true copy of the final Order;
(d)pending payment to the Applicant Wife under Orders 2(a) and 2(b) above or the rolling over of the Applicant Wife’s entitlement, the Respondent Husband shall be restrained from dealing with, charging, encumbering or disposing of any entitlements he has under the B Superannuation other than in accordance with the terms of these orders or with the consent of the Applicant Wife, such consent not to be capriciously or arbitrarily withheld;
(e)this Order shall be binding upon the Respondent Husband, his heirs, executors, administrators and personal representatives; and
(f)Orders 2(a), 2(b) and 2(c) shall bind the Trustee of the B Superannuation.

Transfer of Real Property at D Street, Suburb F

That within 60 days of the date of these Orders, the Applicant Wife refinance the property situated at D Street, Suburb F in the State of Queensland, described more particularly as Lot … on RP … with title reference number …, (“the D Street property”) in her sole name.
That contemporaneously with the refinance provided for in Order 3 above, the Respondent Husband transfer to the Applicant Wife (with such documents to be prepared by the Applicant Wife at her expense) all his right, title and interest in and to the D Street property.
That pending the transfer of the D Street property:
(a)the Applicant Wife shall have the sole right to reside in the D Street property; and
(b)the Applicant Wife shall pay for all outgoings on the D Street property, including Council and Water Rates and Insurances as and when they fall due and indemnify the Respondent Husband against the same.
That in the event that the Applicant Wife is not able to refinance the D Street property into her sole name within 60 days of these Orders, then the D Street property is to be listed for sale and the following provisions will apply:
(a)the Applicant Wife shall appoint a Real Estate Agent for the sale of the D Street property;
(b)the D Street property shall be sold by private treaty within 6 months from the date of these Orders or as recommended by the appointed Real Estate Agent and the D Street property shall be listed for sale at a price decided by the Applicant Wife;
(c)in the event that the D Street property is not sold within 6 months from the date of these Orders (or such further time as agreed between the parties in writing), then the parties shall do all acts and things necessary, including signing all documents so as to list the property for sale by public auction;
(d)in the event an auction occurs, the Applicant Wife shall appoint an Auctioneer and the reserve price shall be decided by the Applicant Wife;
(e)in the event the D Street Property is not sold by auction, then unless otherwise agreed in writing by the parties, the property be submitted to a second auction within 3 months of the date of the first auction and the reserve price shall be decided by the Applicant Wife;
(f)in the event the D Street Property is not sold at the second auction, then unless otherwise agreed in writing by the parties, the property be submitted to a third auction and any subsequent auctions until the property is sold;
(g)the conveyancing solicitor for the settlement of the D Street property will be Steadfast Solicitors;
(h)upon the sale of the D Street property, the sale proceeds shall be distributed in the following manner and priority:
(i)to pay all necessary selling costs associated with the property, including commission fees, legal costs and other necessary selling costs;
(ii)to pay any council and water rates and maintenance levies outstanding in respect of the D Street property;
(iii)to meet all reasonable marketing costs of sale as invoiced from time to time by the Agent conducting the sale and/or auction (as applicable);
(iv)in discharge of the mortgage with K Bank Ltd with mortgage number …28; and
(v) the balance to be paid to the Applicant Wife.
That the Applicant Wife shall forthwith retain and/or receive as her absolute property and/or financial resource all of her right, title and interest to and in, and the Respondent Husband shall relinquish and/or transfer to the Applicant Wife all of his right, title and interest, if any, to and in the following:
(a) the credit balances of the Applicant Wife’s bank accounts;
(b)the motor vehicle in the Applicant Wife’s possession, and the Respondent Husband shall do all things necessary to cause his interest in that motor vehicle to be transferred to the Applicant Wife within two weeks of being presented with documents to effect such transfer, and the Applicant Wife shall use her very best endeavours to refinance the motor vehicle finance debt currently in the Respondent Husband’s name secured over that motor vehicle, into her own name;
(c) furniture in the Applicant Wife’s possession;
(d)pursuant to orders 1 and 2 above, an amount of $174,000 of the Respondent Husband’s superannuation with C Superannuation and an amount of $10,000 of the Respondent Husband’s superannuation with B Superannuation Limited; and
(e)superannuation interest in J Superannuation fund held in the Applicant Wife’s name;
(f)all of the Respondent Husband’s right, title and interest in shares in the company G Pty Ltd and the Respondent Husband shall do all things necessary to cause such right, title and interest in those shares to be transferred to the Applicant Wife within two weeks of the date of these Orders, and in aid of effecting compliance with this Order, the Applicant Wife’s solicitors have leave to serve a copy of these Orders on the company G Pty Ltd who are expected to provide information as to the Respondent Husband’s shareholdings in that company to the Applicant Wife’s solicitors and as to how such transfer as ordered hereby may be effected.
That the Respondent Husband shall forthwith retain and/or receive as his absolute property and/or financial resource all of his right, title and interest to and in, and the Applicant Wife shall relinquish and/or transfer to the Respondent Husband all of her right, title and interest, if any, to and in the following:
(a)      the credit balances of the Respondent Husband’s bank accounts;
(b)      furniture in the Respondent Husband’s possession;
(c)      motorbike in the Respondent Husband’s possession;
(d)shares in H Limited held in the Respondent Husband’s name and/or any of the proceeds of sale received by the Respondent Husband for the sale of those shares or any portion thereof; and
(e)pursuant to Orders 1 and 2 noted above, any balance of any superannuation held by the Respondent Husband in his superannuation interest with C Superannuation and B Superannuation.

General Retention and Responsibility for Liability

That except for the property dealt with pursuant to the terms for these Orders, the Applicant Wife and Respondent Husband retain as her or his own property absolute all assets and financial resources of whatsoever description and wheresoever situate of which that party is the legal owner of and/or which is/are in the possession of and/or control of that party as at the date of these Orders.
That each party indemnifies the other with respect to any expenses, outgoings and liabilities related to those items of property which they retain or receive pursuant to these Orders.
That except as otherwise provided for in these Orders, the parties remain individually liable for any taxation liability that may accrue or has accrued up to and including the date of separation (including but not limited to income tax and fringe benefits tax) and shall continue to remain individually liable for any such liability accruing thereafter and shall indemnify the other regarding the same.
That the parties shall each do all acts and things necessary including signing all necessary documents so as to give full force and effect to the provision of these Orders and in the event that either party refuses or neglects to comply with any provision of these Orders within 14 days of a written request to do so by the other party, then a Registrar of the Family Court of Australia at Brisbane be hereby appointed pursuant to s 106A of the Family Law Act 1975 to execute all documents in the name of that party and to do all acts and things necessary to give validity and operation to these Orders, and the party in default shall pay all reasonable solicitor/own costs incurred by the non-defaulting party.
That save as otherwise provided herein, the transferee party or the party receiving the benefit of any transaction pursuant to these Orders, shall prepare the documentation necessary to give effect to the provisions of these Orders at their cost and be further responsible for the payment of any registration fees in relation to the transfer of the property to their name provided however that, where a party is required to release a mortgage or the liability pursuant to the terms of these Orders, that party shall be responsible for the preparation of any documentation necessary to secure the release, refinance or repayment of that liability as the case may be.

Note: The form of the order is subject to the entry of the order in the Court’s records.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Kinnon & Kinnon has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT BRISBANE

FILE NUMBER: BRC 10443 of 2019

Ms Kinnon

Applicant

And

Mr Kinnon

Respondent

EX TEMPORE REASONS FOR JUDGMENT

Before me this afternoon on Monday, 3 August 2020, is a property adjustment orders final application. This application is brought by the applicant, whose name is Ms Kinnon, she is the person who I will from hereon for convenience refer to as the applicant wife. The application is brought against her husband, he is still her de jure husband, a dissolution of their marriage not yet having been obtained although their marital relationship has broken down and ended. His name is Mr Kinnon. The matter is before me today for a final hearing. It was listed this afternoon for a final hearing which was expected to take less than the afternoon simply because there was an expectation that the respondent husband would not appear, either with representation or in-person, without representation. That expectation has proven correct. Mr Kinnon, the respondent husband, has been called three times outside the court and has not appeared.
I shall explain the circumstances of same. I can see from some orders in the file I have been provided with that the matter has been in this Court’s list at least since some time in the middle of last year, if not earlier. It came before this Court as a contested parenting matter as well as a contested property adjustment matter. The matter was being dealt with before Registrars and then ultimately Senior Registrar Spink up until 27 February 2020. An interim application filed by one of the parties, I presume, the applicant wife, on 29 August 2019, was listed by Senior Registrar Spink to be heard by me on 11 May 2020 at 10.00 am. That application filed by the wife sought certain interim property adjustment orders.
As any astute observer would recognise 11 May 2020 was right in the middle of the COVID-19 caused shut down of this Court’s face-to-face hearings. On that day though, notwithstanding the shutdown of face-to-face hearings, I conducted, what might be described as a face-to-face, digital media hearing. The solicitor who has been appearing for the applicant wife throughout these proceedings, Mrs Hannant, appeared before me on that day via the internet based Microsoft Teams video-conferencing platform that the Court had introduced to deal with matters appropriately during the COVID-19 lockdown. On that day, the respondent husband appeared on his own behalf, via the Teams technology, from his home in New South Wales. He was unrepresented as he has been for some time, if not all the entirety of the time the proceedings have been before this Court. Nevertheless, he appeared that day on the interim hearing.
On that day, I made several pages of orders. They included firstly, an order that each of the parties provide full disclosure and provide the other with the documents that they were required to provide in respect of property settlement matters. In particular, at the instigation of the applicant wife, through her solicitor, I ordered the respondent husband to provide the applicant wife’s solicitors with full disclosure in respect to the sale of 1,860 shares held by him in a parcel of shares in an ASX company called H Limited and I ordered him to disclose the nature of the expenditure of the sale proceeds of those shares.
I also made orders restraining the parties from dealing with their superannuation in any way prejudicial to the other. I also ordered that the wife could sell the former matrimonial home, situated at Suburb F, in which she and the children of the marriage were living at the time, if she had to because of an inability to keep meeting the mortgage repayments as required by the bank. Though I understand now that the bank has been rather forgiving of the mother during this COVID crisis and that she has been on an interest only repayment arrangement for some time.
I also restrained the husband from dealing with, in any prejudicial manner, shares that he held in the company, G Pty Ltd. Critically though, as has been pointed out appropriately by Mr Selfridge of counsel who appears today for the applicant wife, I determined as a matter of course on 11 May 2020, to take into my docket the property adjustment matter and list it before myself for a trial management event to list it for a trial as quickly as possible to help these parties finalise their matters and get themselves out of the Court’s list as soon as possible. I ordered that the matter be listed for a trial management event on Friday, 19 June at 9.30 am. I have a recollection of clearly speaking to the respondent husband about that and telling him that on that day I will list it for a trial a few months afterwards and that day will be about making the directions for the parties to file their affidavit evidence. Just from memory, I got a sense that day, whether it was out of a sense of guilt, or remorse, or hopelessness, whatever it was, I got a sense that he was not going to participate much further in the proceedings and would not be putting up much of a case in response to any case that was made by the wife. It was still clear that he had to do certain things in respect of disclosing what he had done with the shares and what had happened with respect to those $35,000 worth of shares that he told the Court about, that he owned in a company called G Pty Ltd. In that respect, I think he had some business or employment interest in G Pty Ltd.
The matter did come back before me, as I ordered, on 19 June 2020. On that day, Mrs Hannant, solicitor appearing for the wife appeared again by video-conferencing using the Teams platform although on that occasion, although he knew it was on and he had previously appeared that way, the husband did not appear and nor did anyone appear on his behalf. On that day, the matter was listed for final hearing before me on this very afternoon at 2.15 pm and I made some directions with respect to the filing of material. I made it clear in my notations, particularly notations A and B, that I intended to have an in-person hearing in this Registry, as I am this afternoon, face-to-face in-person and not via the Teams network and I made it clear that if the husband did not show up or have any one appear on his behalf that final orders were likely to be made on the application of the wife.

I work on the basis that a copy of the sealed orders of that day, 19 June 2020, were forwarded to the husband’s address, as recorded by the court. My Associate pointed out to me earlier, as we were coming down to Court, that given his attendance via video on the earlier date, 11 May, which would have been set up through correspondence sent to the email address the court has for him, he would therefore have received, at the same address, the orders that were made on 19 June informing him about today’s proceedings. Therefore, I am satisfied that he knew that they were on. Counsel for the wife confirmed that all the affidavit material that has been filed by the wife’s solicitor since then, as well as a copy of his submissions has also been served upon the husband at his last known address for service.
At the start of today’s proceedings, as my court officer has already observed for the record, Mr Kinnon was called three times outside the Court and no appearance was recorded. Mr Selfridge has on his client’s behalf, the applicant wife, put before the court a written outline of argument and submissions and has referred me to a draft of the orders that he asks the Court to make on behalf of the applicant wife here today. That draft is attached as exhibit A-7 to the affidavit of Mr Selfridge’s instructing solicitor, Ms Laura Hannant, which was filed on 31 July 2020. I shall return to that in due course.

Some Relevant History

The applicant wife was born in 1976 and she is currently 43 years of age. She tells the Court in her affidavit of evidence that she is in good health. The respondent husband was born in 1971, so he is currently 49 years of age. The two of them were married in early 1996. It seems that the wife was living in Sydney at the time, and working as an apprentice earning about $28,000 a year, with a small amount of superannuation that she had already accumulated and a motor car and some possessions.
The husband, who I understand is a New Zealand citizen, had come across to Sydney to study and when they met he had nothing in the way of interests in any property but rather carried a HECS debt (a debt to the Commonwealth of Australia for his university fees that are deferred) of about $17,000. The parties’ first child was born in 1996, a boy, Mr L. Their second child, a boy, Mr M was born in 1998. Their third child, a boy, Mr P was born in 2000. Those three are now young men aged 24, 22 and 20 or thereabouts. Their fourth child, this time a girl, N was born in 2002. Their fourth son and fifth child, X was born in 2005 and their second daughter and last child to make up a sib-ship of six, Y, was born in 2007. So they have six children who range in age from 24, 22, 20 and three still as children under the age of 18 being N, who is 17, X, 15, Y, 12.
At least before half way through their relationship, they moved to Queensland and they bought a property on the south-side of Brisbane. The husband was working and earning an income. The wife worked on and off throughout the relationship but also worked hard principally parenting their six children and managing and running their household. The wife accepts that the husband was, as she says in her affidavit, the main income earner during their relationship but in contrast she asserts, and I accept, that she was the main carer for the children although she also worked intermittently earning some income as well.
The wife asserts, and I also accept, that she effectively did most of the parenting of the children, particularly when they were young. She said that when they were young her husband refused to change dirty nappies, he refused to wake up at night to settle the children and he would refuse to care for them. She says that as the children got older the husband was very abusive to them and the household struggled with the abuse that he directed at her and the children such that they would take steps to avoid upsetting the husband as much as they possibly could, do everything that they could to please him, including having all of the housework done and the place tidy by the time he would come home from work so he would not get upset or complain, which was a tendency that he had.
The wife said that occasionally the husband would assist her with cleaning the dishes, she even specifically refers to the actual task, and otherwise I accept that she was responsible for it. Interestingly, in this day and age when the sharing of these sorts of things are generally still gender based, the wife says that she did about 95% of the gardening and outside work around the home as well - mowing the lawns, cutting the hedges, trimming and pruning the trees, raking the leaves, putting the rubbish out and so on. She even pointed out that her husband would complain to her, saying that he did not like her doing the lawn mowing because it made him look bad for not doing it.
I also accept the wife’s evidence that the husband travelled a lot for his work and that the home ran a lot smoother when he was not around. She says that during the relationship she believed the income that they both earned, that is what he earned from his work and income she earned from time to time from her work, went into a sole joint bank account. The wife tells the Court that she did not even have her own personal bank account and to the best of her knowledge she did not think the husband did either. She has not seen any evidence that he did but she did not think that he did have his own either. She said that all their household expenses and family expenses came out of their joint bank account but since they have separated she has come to learn that from at least the middle of 2017, which was a year before their first real separation, she has discovered that his income was not being deposited into their joint account.
The wife deposed to their relationship breaking down for the first time, and there being a separation, when she discovered that her husband, who would have been in his mid-40s or thereabouts, was having an affair or carrying on an extra-marital relationship with a young woman in her early 20s somehow connected with a religious congregation that the couple and their children attended from time to time. After some time, that relationship apparently ended and the husband came back to the home and was accepted back into the home by the wife it seems.
That did not last. As around this time, their eldest daughter, N, informed the mother that her father had been sexually abusing her from a young age, over a long period of time. As might reasonably be expected, that revelation ended the marital relationship. Indeed, the father left the home and I understand the wife says the marriage ended in or around the middle of 2018. The father has been charged by Queensland Police with a number of offences arising out of the disclosures made by the daughter, N. Those charges are yet to go to trial and N is, on the evidence, soon to have her evidence, at least the evidence she is giving, tested under cross-examination via pre-recorded video evidence. I am also aware and accept the wife’s evidence that their youngest child, Y, who I said is only 12 years of age has also disclosed to her that the husband was inappropriately sexually abusing her from an early age. She has elected at this point in time not to provide a statement to the police but the wife has informed the Court through her evidence that she has informed Police of what Y has told her.
So the evidence establishes that the couple was together for some 22 to 23 years in their marriage relationship between the date of marriage and when they separated. Separation was just over two years ago. Post-separation the husband contributed in a fairly minor extent to the wellbeing and financial welfare of the family in that for about five or six months in the first part of 2019 he managed to continue to pay the mortgage repayments on the home that the family lived in in the southern suburbs of Brisbane. However, around the middle of last year, 2019, that ceased. There was also a period of time in 2019, towards the end of the year, where the wife did receive some child support, but not very much and it did not last for long and I understand that there are thousands of dollars’ worth of arrears of child support now that are outstanding.
The evidence is that the three eldest of the six children are young adults, the youngest of those three being 20, and at least one of them still lives at home. To a substantial extent, they depend on the applicant wife for their financial support and to some degree, their emotional wellbeing. The three younger ones, of course, are completely dependent upon the applicant wife for their financial and emotional wellbeing and the wife is having to organise and pay, to some extent, that which is not paid for through Medicare I wold expect, for counselling that is needed by at least the two girls and I think the younger brother, who is also getting some counselling to help him emotionally deal with what he knows his father was responsible for with respect to what he has done to the two sisters.
I have this evidence before me, and I accept it. The property at Suburb F, which is now I understand registered in the sole name of the wife for which she is trustee for sale is valued at around $680,000. There is a motor vehicle, which I understand is registered in the joint names of the husband and the wife worth about $21,000 but which has a debt in respect of it, secured by the car and which is in the husband’s name securing I am told $8,306 in debt still.
The husband took with him a motorbike, the wife has estimated its value at $22,500. The wife says that there is furniture in the former matrimonial home which is worth $5,000. There is also the asset of the shares in the company, G Pty Ltd, the husband told the Court about earlier in the year, about which he gave no disclosure and are said to be worth $35,000, which the wife knows nothing more about. That, like the motorbike, will be treated as the husband’s property, in the property settlement.
There was a portfolio of shares that I have spoken about in the Australian share market listed company, H Limited, and the evidence satisfies me that after the wife was caused, through failure of the husband to comply with my orders that I have referred to about disclosing the sale of the shares and what the proceeds of that sale were spent on, to subpoena the company itself, in the lead up to these proceedings, she subpoenaed the company and they have produced records to show that from 17 January 2018, in relatively small share parcels sometimes as low as 10 or 20 shares at a time, sometimes as high as 250, 270, 421 shares at a time, the husband gradually sold off the shares that he held in H Limited. It seems on the evidence that he did this secretly without telling the wife or obtaining her permission and without informing her that he had done it, without even letting her know what was happening with the proceeds of sale. The wife has in paragraphs 27 and 28 of an affidavit of evidence filed on 24 July 2020 listed all of the dates, the size of the parcels of shares sold, the sale price at which the shares were sold and the total proceeds that were received by the husband on the sale of those shares. She says in respect of each of those that all add up to some $89,086.05 that there is no record of any of those funds being deposited into the joint account or any other account that she knows of. As I have already said, she does not know of any other accounts than the one joint account. So she has not found any evidence that any of these proceeds of sale from the beginning of 2018, so some several months before separation, were deposited into their joint account. I accept that they were not.
It is to be remembered that I ordered the husband to provide disclosure in respect of this, and he did not provide it. So, there is absolutely no evidence before the Court that he has even spent the money that he obtained from the sale of these shares, although I have some recollection that he might have said that he did when he was before the Court, although not under oath, on the earlier date, 11 May, this year. I shall return to that shortly.
The evidence is that the husband has a superannuation interest in a superannuation fund called Q Super to the extent of $174,000. There is also an interest that he has in B Superannuation in a superannuation fund in the amount of $12,097. The wife has a small superannuation interest in J Superannuation of $1,634. She has cash at bank, she says in her affidavit, of $6,965. Therefore, the total of the value of the assets or interests in property, including the H Limited and G Pty Ltd shares, is $1,047,284. The house is subject to a mortgage of $363,427 and as I have said the motor car is subject to a liability of $8,306. Total liability is therefore $371,734, and the total net property is $675,549.99.
Mr Selfridge of counsel referred to the High Court decision of Stanford. I am readily persuaded in this case that property adjustment orders are required to do justice and equity between the parties, particularly, since the most significant asset, the real property, is registered in joint names and the other largest property interest is the husband’s superannuation, which is only in his name and from which the wife can obtain some share only through a super-splitting order made by the Court. The process of determining a just and equitable order, as Mr Selfridge has referred to already, usually takes the form of a four-step process. The first step in that process is one that I have already undertaken which is identifying the property interests of the parties. The second step is considering the contributions that the parties have made that are outlined as required to be considered pursuant to s 79(4) of the Family Law Act 1975 (Cth) across all facets and aspects of their relationship, including the contributions they made at the start, contributions they made throughout their marriage and contributions that they have each made since their separation up until the time of the trial. Those are contributions in the form of direct property contributions, indirect property contributions, contributions that are made to the wellbeing of the relationship of the two parties and to the welfare and wellbeing of the family constituted by the parties and any children that they have had.
Mr Selfridge made submissions in respect of what has come to be called the notion of “add-backs” over the years in property adjustment family law jargon. In this particular case, Mr Selfridge submits that $89,000 should be notionally added back into the ‘pool’ of property interests of the parties against which contributions are assessed in order to determine the just and equitable property adjustment orders that are to be made at the end of the day. There is quite a deal of authority, dating back years in this Court, dealing with the question of notionally adding back to a pool against which property adjustment orders are being determined, capital of the parties that no longer exists at the time that the property adjustment orders are being assessed. Quite rightly, as Mr Selfridge appropriately pointed out, adding back has generally been regarded as an exception, rather than a rule. There is authority recognising that parties have to get on with their lives after a separation, even in the time leading up to a property settlement trial. They have to live. Living requires the expenditure of money. Sometimes it requires the expenditure of capital. There is a famous line from one of the authorities that says that parties do not go into a state of suspended animation. That discussion of principle has often supported a refusal in the exercise of the discretion that is available to a trial judge to notionally add back expended capital to a pool of property, when determining appropriate just and equitable property adjustment orders.
In this particular case, Mr Selfridge is submitting that the full amount of the proceeds for sale of the H Limited shares and even the G Pty Ltd shares that the Court knows the husband had, should be notionally added back. One thing is clear, the wife did not get any ostensible benefit from the sale of those shares, especially after the separation. She did not even know they were being sold. As I have said already, I accept she was not told they were being sold, her consent was not sought, she was not informed that they had been sold she was not asked to join in the decision making process as to what the money should be spent on. The husband was ordered, when he was present in the Court, through the video medium, to disclose all the details about those sales, including how he had used and expended the proceeds of the sale. That was his opportunity to inform the wife and the Court, as he was required to by order, as he was required to do simply by the full and frank disclosure obligations, what he had done with the proceeds of sale, including if he had just simply spent them on living and meeting his mortgage contributions as he did for some months at the beginning of 2019. But he did not. He did not tell the Court, when he was obliged to, what he had done with the money. In all those circumstances, I consider it reasonable and appropriate, as well as just and equitable, to notionally add back the amount to the pool of property against which property adjustment orders will be considered and made and to treat it as partial property entitlement already received by the husband in the course of these property adjustment proceedings. That is what I will be doing.
The wife proposes that she keeps the house, or its sale proceeds, the car, the furniture, $35,000 worth of shares in G Pty Ltd registered in the husband’s name that she thinks may still exist, but about which she might be being optimistic. She wants a splitting order in respect of the husband’s superannuation which would give her $174,000 of his Q Super. She wants $10,000 of his AMP superannuation. She wants to retain her J Superannuation of $1,600, her cash at bank of just under $7,000. She wants to take on responsibility for the mortgage of $363,500. She wants to take on the responsibility of the husband’s liability for the car in the sum of $8,306. That would give her a total, if she gets all of that, including the $35,000 of shares, of $561,865. If you consider the total pool including the full amount of $89,000 added back and the $35,000 of G Pty Ltd shares included, that would give her, according to the calculations done by her, and her solicitor and counsel, 83% of the total pool. It would permit the husband to retain his motorbike, all those H Limited shares, and the proceeds of sale of them, and a couple of thousands of dollars of his superannuation or $113,500 - about 17%, of the total pool. That would rise by a few percentage points if he has already spent the $35,000 from the G Pty Ltd shares, which would take him to maybe as high as 20% and the wife as low as 80%.
In working out whether that is just and equitable, I go back to the four-stage process that I was speaking of before, in particular the second-stage of the process, the contribution stage. I accept the wife’s evidence about the contributions, as I have already said, that were made during the course of the relationship. They are unchallenged in terms of any evidence put forward by the husband that challenges them and any participation in the trial where he might cross-examine and challenge the wife on them. As was said in exchange with Mr Selfridge, the contributions at the start of the relationship, which was a 22 year relationship, slightly favour the wife. The contributions made by both parties, over the course of the marriage up until the time of separation, I am satisfied favour the wife, but to a greater extent than the initial contributions, particularly given that she, I accept, parented these six children virtually on her own and did virtually all of the work maintaining the home, inside and out, and also earned income which she contributed to the relationship. There was also the fact from the middle of 2017, a year before separation, the husband apparently began diverting his income to a different place and no longer was depositing it into the joint account of the parties. I am satisfied that the wife’s contributions during the marriage exceed the husband’s.

Post-separation, I am satisfied that the wife’s contributions substantially exceed the husband’s. His only contribution really was the contribution to the mortgage payments in the first five or six months of 2019. The wife solely and wholly has cared for all of the children of the marriage, including those who remain under 18 and those who were under 18 until recently. She still supports the three adult children to a substantial degree. She has received virtually no child support from the husband in that time.
I am quite satisfied that the translation of the assessment of those contributions, from qualitative level to quantitative level, the leap to figures, as the former Justice Coleman used to call it, translates to a 65/35 assessment.
The third stage of the process of determination involves consideration of what we call the s 75(2) matters. Section 75(2) of the Family Law Act 1975 (Cth) sets out a whole list of matters that have to be considered if they are relevant. That is brought into play by s 79(4)(e) of the Family Law Act. Basically, it is a comparison of where the parties are at, in respect of their financial circumstances, and a likely comparison prognostically into the future. That is a summary of what the s 75(2) process is. After acknowledging that, the Court also has to consider other matters such as how long they were together, what impact the marital relationship and the decisions that were taken by them both during the course of that relationship in respect of work, parenting and the sacrifices that often go with those issues, such as a parent having to sacrifice a career and/or a career path or work that they love for the benefit of the family by raising children.
The s 75(2) factors encompass all that and allow me in this particular case to be satisfied on the evidence that in order to do justice and equity between the parties there needs to be a further adjustment in favour of the wife. One of the reasons, which I did not already just mention, is a look at prognostically what sort of child support is going to be paid by the person who does not have care of the children to the person who does have care of the children into the future. The husband in this case is, on the evidence, likely to go to jail and he is likely to go to jail for some years. He is unlikely to be paying child support in respect of the three children of the relationship and especially the two younger ones who will be children for several years yet at any time in the future leaving, the full financial burden for their care to fall on the shoulders of the wife. The wife’s employment situation and career prospects are, with all due respect, fairly limited because of the decisions that were made by the parties during their relationship, for her to be the principal carer and principal parent which has had a big impact upon her and she has minimal superannuation as a consequence.
As I said in exchange with Mr Selfridge of counsel earlier in the afternoon, one has to describe this pool of property as fairly modest. Indeed, if the matter had not already been in the Family Court’s list because of the Magellan nature of the parenting case one might have thought it was a case which would normally fall within the jurisdiction of the Federal Circuit Court. It is a fairly modest pool. When adjusting for all the future and financial consequences of the marriage and the separation and the obligations it leaves upon the parties that the smaller, relatively, the pool of property to be divided up, the larger the percentage has to be in respect of the adjustment in favour of the wife.
In this particular case, there is a pool of around 1 million. 15% is $100,000. I am quite satisfied that a further adjustment of around 15% to 18% is appropriate having regard to all of the s 75(2) factors. It may only prove to be a 15% adjustment if the wife does not get the $35,000 worth of shares, and I am particularly concerned or worried that she will not get that. Realistically, if the husband comes out of prison and gets a job, one might expect that he will be able to earn that sort of money himself within a couple of years. It is unlikely that the wife will be racing into work that enables her to earn that sort of money, even once the children have grown up and are no longer on her hands.
So, that would take me to the sort of adjustment that meets the orders that the wife is seeking and in all the circumstances, I consider that to be just and equitable. I have had a look at the orders that the wife seeks, which are attached as the seventh exhibit to the affidavit of her solicitor filed on 31 July. I am also satisfied in respect of the super splitting orders that procedural fairness has been provided as the affidavit of the wife’s solicitor bears that out.
I make the orders that are set out at the commencement of these reasons satisfied they are just and equitable.

I certify that the preceding thirty-seven (37) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Forrest delivered on 3 August 2020.

Associate:

Date: 30 November 2020

[2020] FamCA 1017

3 August 2020

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