KOZAK (Deceased) and KOZAK

[2020] FCWA 161

JURISDICTION : FAMILY COURT OF WESTERN AUSTRALIA

ACT: FAMILY LAW ACT 1975

LOCATION: PERTH

CITATION: KOZAK (Deceased) and KOZAK [2020] FCWA 161

CORAM: TYSON J

HEARD: 24 JANUARY 2019, 8 AUGUST 2019, 28 APRIL 2020 and MINUTES FILED 24 AUGUST 2020 and 31 AUGUST 2020

DELIVERED : 21 SEPTEMBER 2020

FILE NO/S: PTW 5350 of 2016

BETWEEN: MS MORRISON (as the Legal Personal Representative of) MS KOZAK (Deceased)

Applicant

AND

MR KOZAK

Respondent

Catchwords:

FAMILY LAW – Where after the trial and publication of reasons and prior to the pronouncement of orders the wife died – Leave to re-open granted following the wife’s death and orders for substitution of the legal personal representative – Where the wife received an insurance payment prior to her death, which she had not banked or disclosed – Where the wife’s insurance payment only came to light after her death, upon disclosure by the legal personal representative – Where the husband seeks the insurance payment be included in the asset pool for division and other changes following the trial – Where the wife’s terminal illness resulted in the insurance payment - Where it is agreed and the court finds it is appropriate to make an order in respect to property following the wife’s death –– Where the court adopts a multiple pool approach – Assessment of contributions – Assessment of s 75(2) factors – Case turns on its own facts

Legislation:

Family Law Act 1975 (Cth)

Category: Not Reportable

Representation:

Counsel:

Applicant	:	Mr Dowding SC
Respondent	:	Mr Hedges SC

Solicitors:

Applicant	:	Frichot and Frichot
Respondent	:	Warner Legal

Case(s) referred to in decision(s):

Anson & Meek (2017) FLC 93-816

C and T [2002] FamCA 196

Calvin & McTier (2017) FLC 93-785

Dickons & Dickons (2012) 50 Fam LR 244

Froth & Froth [2007] FamCA 1608

Holland & Holland (2017) FLC 93-798

Lenehan & Lenehan (1987) FLC 91-814

Menzies and Evans and Evans (1988) FLC 91-969

Miller & Miller [2009] FamCAFC 121

Norbis v Norbis (1986) 161 CLR 513

Norman & Norman [2010] FamCAFC 66

Re Parrott v Public Trustee of NSW (1994) FLC 92-473

Sinclair & Sinclair [2012] FamCA 388

Stanford v Stanford (2012) 247 CLR 108

Tasmanian Trustees Limited and Gleeson (1990) FLC 92-156

Vokic & Vlass [2012] FamCA 56

Yates & Yates [2012] FamCAFC 138

Yeates (as executor for Mr Yeates) & Yeates [2013] FCWA 117

Zaruba & Zaruba (2017) FLC 93-776

Zyk and Zyk (1995) FLC 92-644

TYSON J:

WORDS IN SQUARE BRACKETS REPLACE WORDS USED IN THE ORIGINAL JUDGMENT – PARTIES’ NAMES AND IDENTIFYING DETAILS HAVE BEEN CHANGED

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

1[Ms Kozak] [(“the wife”)] and [Mr Kozak] [(“the husband”)] separated in 2015, after a 19 year relationship. The parties were unable to agree how to divide their property, which proceeded to trial on 12 and 13 July 2018. At the time of trial, the wife was 58 years of age and was in receipt of palliative care.

2On 30 July 2018 I published my Reasons for decision. I found the parties’ property and superannuation entitlements were worth $836,225, excluding the value of the husband’s interest in [Property A], which was to be quantified upon sale. I found it was just and equitable to make an order altering the parties’ property interests pursuant to s 79 of the Family Law Act 1975 (Cth). I assessed the husband’s contributions to be 52.5% and the wife’s to be 47.5%. I found the wife was entitled to a 7.5% adjustment in her favour, on account of s 75(2). I concluded the just and equitable outcome was to divide the parties’ net property and superannuation interests as 55% to the wife and 45% to the husband.

3At the time of publication of my Reasons, I was unable to pronounce final orders. I invited the parties to confer as to the terms of a minute, in circumstances where the husband was required to advise whether he wished to retain [Property B], for the settlement of Property A to take place to enable the husband’s entitlements to be quantified, and for procedural fairness to be provided to the trustee of the husband’s fund, to facilitate the agreed superannuation splitting orders.

4[In mid] 2018 the wife died. On 26 November 2018 [Ms Morrison], the wife’s sister, was appointed as her Legal Personal Representative and substituted for the wife as a party to the proceedings (“the Legal Personal Representative”). Orders were made by consent on 24 January 2019 to adduce further evidence. There was a dispute about the scope of the further evidence to be adduced, which I determined following a further hearing, and published Reasons on 3 December 2019.

5It has since emerged that neither the wife nor the husband complied with their duty to provide full and frank disclosure in a timely manner. Senior Counsel for the Legal Personal Representative described that failure as disgraceful.

The Trial

6I incorporate my Reasons delivered on 30 July 2018 (“2018 Reasons”) and 3 December 2019 (“2019 Reasons”).[1]

[1] Kozak (by her Legal Personal Representative) Ms Morrison and Kozak [2019] FCWA 243.

7Pursuant to orders made on 3 December 2019, the Legal Personal Representative was given leave to adduce evidence in relation to the wife’s death, the wife’s receipt of an insurance payment and any tax consequences. The husband was given leave to adduce evidence in relation to his income since the 2018 Reasons, including his receipt of government benefits, any redundancy and his efforts to obtain employment. The Legal Personal Representative was given leave to cross-examine the husband. I did not permit the husband to cross‑examine the Legal Personal Representative, given the narrow scope of matters that were the subject of leave to re-open, for the reasons provided.[2]

[2] 2019 Reasons.

8The Legal Personal Representative relied upon her affidavit signed 29 March 2020. The husband relied upon his affidavit signed 30 March 2020. As a result of the COVID-19 pandemic, neither had been able to swear their affidavits. By consent, each party affirmed their evidence at the resumed trial on 28 April 2020. The Legal Personal Representative elected not to cross-examine the husband.

9Senior Counsel on behalf of both parties made submissions. At the time of the hearing, the husband had still not provided procedural fairness to the trustee of his fund.[3] Regrettably neither party had filed a Minute setting out with precision the Orders they sought. I made orders requiring the husband to provide notice to the trustee of his fund and upon receipt of the response, each party had leave to file a Minute setting out the orders they sought.

[3] Notwithstanding the fact the husband had agreed to do so at the conclusion of the trial in 2018, as recorded in my Reasons, paragraph 149, 2018 Reasons.

10There were significant delays in the provision of procedural fairness to the trustee of [Super Fund A] and receipt of their response. On 22 July 2020, Super Fund A confirmed they had no objection to the form of the proposed order, noting the quantum was not agreed.

WHAT ARE THE ORDERS SOUGHT?

11It is agreed the husband will retain Property B, each party will retain their personal property and there will be a superannuation splitting order from the husband’s superannuation with Super Fund A, in favour of the Legal Personal Representative.

12The husband seeks orders in terms of his Minute filed 24 August 2020. He proposes the property of the parties, inclusive of the Death and Total and Permanent Disablement (“TPD”) payment and his interest in Property A, be divided 70% in his favour and 30% in favour of the Legal Personal Representative. To achieve that outcome, he seeks to retain the funds held in the Controlled Monies Account and $65,225 from the TPD payment. He proposes upon the sale of Property A, his share be divided in the same percentages. He says a superannuation splitting order of $6,164 is required in favour of the Legal Personal Representative.

13The Legal Personal Representative seeks orders in terms of her Minute filed 31 August 2020. She proposes that the property of the parties, excluding the TPD payment and Property A, be divided equally. On her calculations, that would require her to retain the Controlled Monies Account, the husband pay to her $7,729 and a superannuation splitting order of $77,452 in her favour. She seeks to retain the TPD payment and the husband retain his interest in Property A.

WHAT IS THE LAW?

14In my 2018 Reasons, I set out the approach to applications for alteration of property interests.[4]

[4] 2018 Reasons, paragraphs 23 – 29.

15Subsection 79(8) of the Act is now important, because it deals with cases where one party dies before the proceedings are completed. The subsection provides as follows:

(8)Where, before property settlement proceedings are completed, a party to the marriage dies:

(a)the proceedings may be continued by or against, as the case may be, the legal personal representative of the deceased party and the applicable Rules of Court may make provision in relation to the substitution of the legal personal representative as a party to the proceedings;

(b)if the court is of the opinion:

(i)that it would have made an order with respect to property if the deceased party had not died; and

(ii)that it is still appropriate to make an order with respect to property;

the court may make such order as it considers appropriate with respect to:

(iii)any of the property of the parties to the marriage or either of them;

…

16The plurality of the High Court in Stanford v Stanford (2012) 247 CLR 108 referred to s 79(8) in these terms:

24Section 79(8)(b) thus requires a Court considering an application for a property settlement order which is continued by or against the legal personal representative of a deceased party to determine first, whether it would have made an order with respect to property if the deceased party had not died and second, whether, despite the death, it is still appropriate to make an order. Both of those inquiries require consideration of s 79(2) and its direction that the court not make an order unless “satisfied that, in all the circumstances, it is just and equitable” to do so. It follows that, in cases where s 79(8) applies, a court must consider whether, had the party not died, it would have been just and equitable to make an order and whether, had the party not died, it is still just and equitable to make an order (original emphasis)

17In 2018, when the wife was alive, I was satisfied it was just and equitable to make an order altering the parties’ property.[5] The first limb of s 79(8) is established. The second limb is whether, despite the wife’s death, it is still appropriate to make an order. Both the Legal Personal Representative and the husband invite the Court to do so. For the reasons that follow, I am satisfied it is still appropriate to make an order altering the existing property interests of the parties, to achieve a just and equitable outcome.

[5] 2018 Reasons, paragraph 61.

18It is open to the Court, under s 79(8), to make an order, for the benefit of a stranger to the marriage[6] as “the contributions of a spouse are not set at naught simply because, when he or she dies, the assets are left to grandchildren or strangers rather than to children”. In the decision of Menzies and Evans and Evans (1988) FLC 91-969, Smithers J held that the wife’s estate should not be deprived of the benefit of the contributions to the marriage. He said at 77,010:“[I]t would in my view be wholly inappropriate that the deceased should be deprived of the benefits of her contributions over so many years”.

[6] Menzies and Evans and Evans (1988) FLC 91-969.

19That case was cited with approval in Tasmanian Trustees Limited and Gleeson (1990) FLC 92-156 where Nygh J stated at 78,086, “I wholeheartedly agree with the learned Judge in that case that the deceased has a prima facie moral entitlement to the share gained by contribution during his or her lifetime and, if this is so desired, to dispose of that share by will to persons who are strangers to the marriage”.

20I respectfully agree and endorse those remarks.

WHAT ARE THE ISSUES IN DISPUTE?

21I am required to determine the following matters:

(a)What is the value of the property of the parties?

(b)What are the contributions of the parties? What approach should the Court adopt towards the assessment of the parties’ contributions?

(c)Should there be any adjustment in favour of the husband, on account of the matters raised in s 75(2)?

(d)What outcome is just and equitable?

WHAT IS THE PROPERTY OF THE PARTIES?

22In 2018, the parties were largely in agreement as to the value of their assets, liabilities and superannuation entitlements. There were a discrete number of items in dispute, which were the subject of findings.[7] I found the known assets, liabilities and superannuation entitlements were as follows:[8]

[7] 2018 Reasons, paragraphs 30 - 59.

[8] 2018 Reasons, paragraph 60.

DESCRIPTION	OWNERSHIP	VALUE
[Shares in Company A]	The wife	$5,621
Furniture	The wife	$440
[Motor Vehicle A]	The wife	$400
CBA Net Saver	The wife	$1,042
CBA Smart Access	The wife	$1,150
CBA Goal Saver	The wife	$14,057
[Shares in Company B]	The husband	$7,774
Furniture	The husband	$11,670
Guns	The husband	$850
Interest in [Property A]	The husband	To be quantified upon sale
Controlled Account: balance of proceeds of [Property C]	Joint	$189,047
[Property B]	Joint	$225,000
Paid legal fees	The wife	$49,180
Paid legal fees	The husband	$49,342
Funds held on Trust - Frichot & Frichot	The wife	$58,877
Funds held on Trust – Warner Legal	The husband	$10,658
NET ASSETS	$625,108
LIABILITIES
Credit card	The wife	$1,584
Debt to the[Legal Personal Representative]	The wife	$23,000
NET LIABILITIES	$24,584
SUPERANNUATION
[Super Fund B]	The wife	$13,776
[Country A] Pension	The wife	$23,925
[Super Fund A]	The husband	$198,000
NET SUPERANNUATION ENTITLEMENTS	$235,701
TOTAL NET ASSETS & SUPERANNUATION	$836,225

23The Legal Personal Representative proposes the following changes to the schedule:

Firstly, the husband’s anticipated inheritance in Property A be removed from the asset pool and be disregarded for the purpose of assessing the parties’ contributions.[9]

Secondly, the wife’s receipt of the TPD payment of $255,599 from Super Fund B should be excluded, save for an adjustment for her superannuation interest in Super Fund B, which is included in the Controlled Account, of $13,776.

[9] Submissions of the Legal Personal Representative filed 24 April 2020, paragraph 8.

24The husband seeks the following changes:[10]

Firstly, the wife’s Super Fund B entitlements be included, at $13,776.

Secondly, the wife’s debt to her sister of $23,000 be excluded.

Thirdly, the wife’s TPD payment be included at $130,600, which he says, is the amount the wife received of $241,823, less $13,776 already accounted for in the asset pool, less the wife’s notional superannuation entitlements.

[10] The husband’s Minute excluded each party’s paid legal fees. This was not the subject of any submissions and was a matter already determined. On that basis, I do not propose to ignore the amounts.

25It is agreed the funds held in the Controlled Account should be updated to reflect the current balance of $204,506.87.[11] The husband had not disclosed an updated legible printout from the Account until the hearing. The amount represents the balance of the proceeds of sale of [Property C], interest earned on those funds of $234, and a payment from Super Fund B of the wife’s superannuation entitlements of $15,225. I will refer to the Super Fund B payment in more detail shortly. The updated agreed figure will be included in the schedule.

The wife’s Payment from Super Fund B

[11] Exhibit 1 – screen shot Goal Saver account ending [xxxx].

26The Legal Personal Representative discovered after the wife’s death, that the wife had received a cheque from Super Fund B for $255,599.66 on or around 23 April 2018. The Legal Personal Representative disclosed the relevant documents in December 2018. At the time of the trial, neither the Court nor the husband were aware of that fact, as a result of the wife’s failure to disclose. The wife never banked the cheque.

27The wife had superannuation entitlements with Super Fund B. I found her superannuation entitlements were worth $13,776.

28It has now emerged that:

•The trustee of Super Fund B provided insurance cover for the wife, arising from her superannuation entitlements through her employment. The wife joined the fund in June 2007, at which time she received TPD insurance cover.[12]

•On around 9 January 2018, the wife lodged a claim for TPD. Her application was not in evidence.[13]

•On 28 March 2018 Super Fund B confirmed the wife’s TPD claim had been admitted, on the grounds of permanent incapacity. The wife’s case was then referred to the trustee of her fund, to approve the release of funds, as confirmed in correspondence sent to the wife on that date.[14]

•On 23 April 2018 Super Fund B wrote to the wife, enclosing a cheque for $255,599.66, together with her member statement and a benefit payment summary. The Super Fund B Member Exit Statement recorded as at 27 March 2018, the wife’s closing balance was $265,226.66, of which $250,000 represented her TPD claim and the balance comprised of her superannuation entitlements.[15]

[12] Exhibit 2 – Deed of Settlement and Release Estate of the late Ms Kozak BT Funds Management Limited and Westpac Banking Corporation, Recitals D & E.

[13] Exhibit 2 – Deed of Settlement and Release Estate of the late Ms Kozak BT Funds Management Limited and Westpac Banking Corporation Recital F.

[14] Annexure MRL2 to the Affidavit of the Legal Personal Representative sworn 29 March 2020 – correspondence from Super Fund B to the wife dated 28 March 2018.

[15] Annexure MRL2 to the Affidavit of the Legal Personal Representative sworn 29 March 2020 – correspondence from Super Fund B to the wife dated 23 April 2018.

29The payment was quantified as follows:

•Gross superannuation $15,485.85

•Less fees & deductions -$259.19

•Amount taken in cash $265,226.66

(TPD Benefit plus superannuation)

•Less Lump Sum Tax $9,627.00

•Net Superannuation Member Benefit $255,599.66

30The Super Fund B statement confirmed monthly premium payments of $184.25 had been paid for death and TPD insurance, from 30 June 2007 up until 27 March 2018.

31The Legal Personal Representative submits the TPD payment of $241,823 should be excluded from the asset pool for the following reasons: firstly, it represents an insurance payment, compensating the wife for her inability to work due to her terminal illness; secondly, the payment was received after separation; and thirdly, the husband made no contributions to the payment, which was never fused with the other assets of the parties.

32The Court has the power to make an order in relation to property which has come into existence after separation.[16] The Full Court have warned of the “dangers of disregarding property of any type”.[17] The definition of property, for the purpose of s 79 of the Act, is not contingent on whether the parties intermingled their property, nor whether parties made contributions directly, indirectly, or at all to specific items of property.[18] The nature, form and characteristics of property and the manner and timing of its acquisition, may have an impact on the manner in which contributions are assessed.[19]

[16] Calvin & McTier (2017) FLC 93-785. Farmer & Bramley (2000) FLC 93-060 and C and T [2002] FamCA 196, Norman & Norman [2010] FamCAFC 66.

[17] See Anson & Meek (2017) FLC 93-816.

[18] For example - Dickons & Dickons (2012) 50 Fam LR 244 at [21]; therein citing Mallet & Mallet (1984) 156 CLR 605, 640 – 641.

[19] Norman & Norman (Supra) at [38] – to [39].

33Had the payment been disclosed by the wife, as she was obliged to do, it would have been included in the asset pool. It was not included, only as a consequence of the wife’s failure to meet her disclosure obligations.

34I am satisfied that the TPD payment is property for the purposes of s 79 of the Act and it should be included in the schedule. I will consider separately, the assessment of the parties’ contributions to the payment.

Property A

35In the 2018 Reasons, I dealt with the husband’s interest in Property A:

47.[The husband]’s mother passed away prior to separation. [Th husband] was not named as a beneficiary in his mother’s will but he successfully challenged the will. Consent Orders were made in [another jurisdiction] in July 2013, which provided that [the husband] was entitled to 50% of his mother’s estate, after payment of the executor’s fees and legal costs of the parties.

48.The estate comprises of [Property A] which has been valued at $225,000. [Property A] is to be sold by way of auction. [The husband] owes around $72,000 in legal fees relating to the challenge to his mother’s estate, which will be paid upon the sale of [Property A], together with the usual costs of sale, in addition to the legal costs of the executor and [a support service].

49.[The wife] estimates that [the husband] will receive upon the sale, $76,500, while [the husband] says that he cannot predict the amount until settlement of the sale takes place. He says and I accept, that [Property A] may not sell for the amount it has been valued at and the costs of each of the parties to those proceedings has not been quantified at this time.

50.I do not consider it to be appropriate to include the amount as suggested by [the wife], but instead, propose that upon settlement of the sale of [Property A], the amount [the husband] will receive can be inserted into the schedule. The amount will be quantified in the near future and in my view, it is preferable to include the actual amount at that time.

36Property A has still not sold. There was no evidence to explain the delay, when Property A is expected to sell and when the husband’s entitlements will crystallise. The Legal Personal Representative submits the Court should disregard the husband’s entitlements and on that basis, his contributions to the inheritance should also be excluded.

37The Full Court[20] have confirmed it is wrong, as a matter of principle, to refer to any existing legal or equitable interests in property as “excluded” from consideration in applications for property settlement. I am not satisfied it is appropriate to exclude the husband’s interest in Property A.

[20] In Holland & Holland (2017) FLC 93-798.

38There was no admissible evidence to support a precise finding as to what the husband’s interest may be. Regrettably, despite the passage of nearly two years since the trial commenced, I am unable to make findings as to the value of the husband’s interest in Property A.

Debt to the Legal Personal Representative

39In the 2018 Reasons I found the wife owed the Legal Personal Representative $23,000. I accepted the wife’s unchallenged evidence that she had borrowed the money, it was a loan that the wife had promised to repay, when she could afford to do so. The husband sought the debt be ignored, on the basis of the Legal Personal Representative’s evidence that she would not chase the wife for repayment. I found the loan should form part of the asset pool, as I accepted it was a debt the wife was required to repay.

40The husband now says the debt should be ignored. He points to the fact the Court found, in 2018, that the wife was unable to meet all of her reasonable expenses from income, and it was reasonable for the wife to borrow money to assist in her support, when she did not have sufficient income to support herself.[21] The husband says that finding was made in circumstances where the Court was not aware of the wife’s receipt of the TPD payment.

[21] 2018 Reasons, paragraphs 38 – 41.

41The husband’s criticisms of the wife’s failure to disclose receipt of the TPD payment, were fairly made. However, the TPD payment was only received on 23 April 2018. The wife’s unchallenged evidence was that she borrowed money from the Legal Personal Representative in November 2017. At that time, I am satisfied the wife was unable to meet her reasonable needs and accordingly, it was appropriate for her to borrow money and for that debt to be included. I decline to exclude the debt, as sought by the husband.

The wife’s Super Fund B

42The husband argued at the 2018 trial for the wife’s withdrawal of $100,000 from her superannuation entitlements in February 2018, be included as a notional asset. The wife was able to access her entitlements due to her ill-health. She applied those funds to her solicitors, which were held on trust and to meet her personal expenses, which she had not been able to meet from her disability pension. The balance of the funds was reflected in the wife’s savings.

43In the 2018 Reasons I observed:

56.I have already included in the asset pool the amount [the wife]’s solicitors hold on trust, together with her savings. In relation to the balance, I accept that [the wife] has been unable to support herself as a result of her health and her disability pension is insufficient to meet her reasonable weekly needs. I am satisfied that the funds have been reasonably expended towards her personal support, in circumstances where she does not have any other income or resources available to her. I accept that [the wife] has met expenses associated with her sister living with her, to assist in caring for her. [The wife]’s expenditure was reasonable and the amounts she claimed were not seriously challenged by way of cross-examination.

57.In circumstances where [the wife] had no alternative sources of income, nor the anticipated funds which the parties had agreed she was to receive from the sale of [Property B], I accept it was reasonable for [the wife] to access her superannuation to support herself. Those funds clearly no longer exist. In my view, the most appropriate way to deal with these amounts is not to treat these amounts as notional assets, but rather to take them into account in my assessment of the s 75(2)(o) factors.

44The husband effectively seeks to re-agitate his earlier argument. He points to the wife’s receipt of the TPD payment and says had the Court been aware of those funds, it may not have found that the wife was then unable to meet her reasonable weekly needs or considered her actions to be reasonable. The husband says that the wife’s conduct unilaterally reduced her superannuation entitlements.

45I do not agree. Firstly, to add back the $100,000 would involve double counting the funds which are already reflected in the schedule, in the form of the funds held on trust by the wife’s solicitors, of $58,877 and the wife’s savings. I am unclear precisely what portion of her savings derives from that source. There was no challenge to the wife’s evidence about these matters. Secondly, the wife received $100,000 on 27 February 2018. The husband’s Senior Counsel submitted the Court could infer by that time, the wife knew or had an expectation of receipt of a payment from Super Fund B. That is simply speculation and not supported by the admissible evidence. Thirdly, the wife had already received funds from her superannuation in February 2018. She did not receive the TPD cheque until 23 April 2018. In the circumstances, I am not persuaded it is appropriate to include the $100,000 as a notional increase in the value of the wife’s superannuation entitlements.

One Pool or More than One Pool?

46In the 2018 Reasons I observed neither party made any submissions as to the preferred approach to be applied towards the assessment of contributions.[22] I then adopted a global approach.

[22] 2018 Reasons, paragraph 101.

47The husband urges the Court to adopt a global approach and one pool, inclusive of the TPD payment and Property A. The other option open to the Court is to adopt separate pools. That was not an approach sought by either party, but one which I raised at the resumed trial. Senior Counsel conceded it was open to the Court to do so.

48The authorities suggest that in most cases the global approach is generally preferred. However, depending on the circumstances, the Court has discretion as to which approach to adopt.[23]

[23] See Norbis v Norbis (1986) 161 CLR 513; Lenehan & Lenehan (1987) FLC 91-814; and Zyk and Zyk (1995) FLC 92-644.

49The Full Court in Zaruba & Zaruba (2017) FLC 93-776 at [38] stated:

In the vast majority of cases, it will be appropriate to address the s 79(2) question by ascertaining the legal and equitable interests in property without making distinctions between individual assets. This is because [referring to Stanford] the ‘express and implicit assumptions that underpinned the existing property arrangements’ can be seen to apply (to the extent and degree to which they do apply) to all of the property of the parties or either of them, including property in which the legal interests vary.

50The Full Court noted there are exceptions, as:[24]

…the position is likely to be different in circumstances where, as here, the characteristics of the property and the circumstances of its acquisition, improvement and the like can be seen to differ significantly and where, as here, the parties’ relationship has taken on quite different characteristics during the period to which the s 79 inquiry is directed.

[24] Zaruba (supra) at [39].

51In Holland & Holland (2017) FLC 93-798 the Full Court referred to the decision in Zaruba (supra), noting:[25]

… nothing said by the High Court in Stanford calls into question what was earlier said by that court in Norbis v Norbis.

[25] See Holland & Holland (Supra) at [30].

52They went on to conclude:

[31]Thus, the nature of a particular interest or interests in property and when and how it was acquired, utilised, improved or preserved may be very relevant to each or all of three central questions: should a s 79 order be made at all; whether contributions should be assessed ‘globally’ or ‘asset by asset’ or by reference to two or more ‘pools’; and, what is the nature and extent of each party’s contributions. However, there is no basis for excluding from consideration any property in which the parties have an existing legal or equitable interest.

(citations omitted)

53It is well established that:

(a)Property does not fall into a protected category merely because it was an inheritance, but it can be quarantined in the hands of the inheriting party if sufficient funds are available to meet the appropriate required settlement.[26]

(b)The Court retains discretion as to how it treats assets acquired after separation. It is at liberty to include an inheritance received post separation globally in an assessment.[27]

(c)The circumstances of each case, including the timing of receipt of the inheritance, and the extent to which the parties’ entitlements can be met without drawing on the inheritance, may impact upon how the Court treats the inheritance.

(d)Courts have adopted a variety of approaches, including quarantining the inheritance and dividing the balance, making appropriate adjustments.[28]

[26] See Bonnici & Bonnici (Supra).

[27] See Calvin & McTier (2017) FLC 93-785.

[28] See Vokic & Vlass [2012] FamCA 56 and Froth & Froth [2007] FamCA 1608.

54Cronin J in Sinclair & Sinclair [2012] FamCA 388 was dealing with a case in which almost all of the asset pool arose from an inheritance received by the wife. His Honour reviewed the authorities and stated:

23.Isolating or quarantining an inheritance must be cautiously done to ensure that earlier important contributions to the family in particular, are not ignored. As will be seen by the evidence here, there is a distinct possibility of that happening if the focus is entirely on the assets received by the wife from inheritances and gifts.

24.As was pointed out in Farmer & Bramley [2000] FamCA 1615; (2000) FLC 93-060 the power in s 79(1) to alter the interests of parties in property extends without limitation to all property regardless of when it was received. As Finn J pointed out (at paragraph 56):

If it was to be determined that a majority of the community considered that one spouse should, as a general rule, have no entitlement to sharing property either by good fortune or good management acquired after separation by the other spouse, then the Act would need to be amended to make this clear. As the Act currently stands, the jurisdiction conferred by s 79(1) to alter the interests of spouses in property extends without limitation to all properties which either spouse is entitled (whether in possession or reversion).

25.Nothing in the Act refers to a requirement that contributions be measured simply by reference to the assets currently held by a party.

26.Accordingly, the assessment and weight to be given to the contributions must be a discretionary one and in circumstances such as the case here, prior cases are of little assistance.

55In the interests of justice and equity, I consider it is now appropriate and useful to treat the husband’s interest in Property A in one pool, the TPD payment in a separate pool and the balance of the assets, liabilities and superannuation in another pool. That will enable the court to assess the parties’ contributions to the property separately, as the different contributions of the parties can be most readily recognised in this way. I consider this approach is also the most convenient.

WHAT IS THE PROPERTY OF THE PARTIES?

56I am satisfied the known assets, liabilities and superannuation entitlements are as follows:[29]

[29] I have ignored the cents and rounded up to the closest dollar.

POOL 1
DESCRIPTION	OWNERSHIP	VALUE
[Shares in Company A]	The wife	$5,621
Furniture	The wife	$440
[Motor Vehicle A]	The wife	$400
CBA Net Saver	The wife	$1,042
CBA Smart Access	The wife	$1,150
CBA Goal Saver	The wife	$14,057
[Shares in Company B]	The husband	$7,774
Furniture	The husband	$11,670
Guns	The husband	$850
Controlled Account: balance of proceeds of [Property C]	Joint	$204,507
[Property B]	Joint	$225,000
Paid legal fees	The wife	$49,180
Paid legal fees	The husband	$49,342
Funds held on Trust - Frichot & Frichot	The wife	$58,877
Funds held on Trust – Warner Legal	The husband	$10,658
NET ASSETS	$640,568
LIABILITIES
Credit card	The wife	$1,584
Debt to [the Legal Personal Representative]	The wife	$23,000
NET LIABILITIES	$24,584
SUPERANNUATION
[Super Fund B]	The wife	$13,776
[Country A] Pension	The wife	$23,925
[Super Fund A]	The husband	$198,000
NET SUPERANNUATION ENTITLEMENTS	$235,701
NET ASSETS & SUPERANNUATION	$ 851,685
POOL 2
Interest in [Property A]	The husband	Not known
POOL 3
TPD Payment	The wife	$241,823

WHAT IS MY ASSESSMENT OF CONTRIBUTIONS?

57In the 2018 Reasons, at paragraphs 62 – 102 I considered the parties’ respective contributions should be assessed as to 52.5% to the husband and 47.5% to the wife. That was on the basis of a differently constituted asset pool.

58At paragraph 101 I found that the wife came to the marriage with assets exceeding those of the husband; the wife injected $20,000 from the proceeds of sale of her home in Country A which enabled the parties’ to buy property in Australia; the husband’s income was slightly greater than the wife’s; both parties’ income was applied for their joint benefit; the wife worked on a full-time basis up until separation; the wife’s contributions as a homemaker were greater than the husband’s; the wife contributed to the care of the husband’s sons from his previous relationship while they were under 18 years; both parties’ had contributed to the best of their ability; and their relationship lasted for 19 years. Those findings stand, in terms of the parties’ respective contributions up until separation.

Assessment of Contributions to Pool 1

59The funds paid into the Controlled Monies Account include interest, together with the additional Super Fund B payment to the wife. The facts about this payment were not assisted by the husband’s late and incomplete disclosure. After the wife’s death, the husband was contacted by [Mr B] from [XYZ Pty Ltd], on behalf of Super Fund B, indicating the wife had been underpaid.[30] After a chain of communications, it appears the wife’s TPD payment was incorrect and Super Fund B then made an additional payment of $15,225.[31]

[30] Exhibit 3 Email from Mr B to the husband dated 12 August 2019.

[31] Exhibit 2 – correspondence from Super Fund B to the husband dated 26 September 2019.

60The husband entered into a Deed of Settlement and Release, a signed copy of which was not in evidence. The husband did not disclose any of the documents, or receipt of the funds, until the day of the trial. Why the husband did not notify the Legal Personal Representative when he was contacted by Mr B, or disclose any of the documents, was not satisfactorily explained. The husband’s Senior Counsel explained the failure to disclose arose due to poor communication. I was not convinced by that explanation. To the husband’s credit, the funds were paid into the Controlled Account.

61Doing the best I can with the available evidence, it appears Super Fund B made what they referred to as a “goodwill payment” of $15,225, which was the difference between the $250,000 TPD payment and the correct benefit of $266,225. That payment is a contribution made by the wife, which requires recognition.

62The period post-separation is four years and six months, from 2 October 2015 to April 2020.

63Since separation, the husband has had the benefit of ongoing occupation of the properties owned by the parties, initially Property C and since its sale, Property B. The parties’ agreed the rental value of Property B was $250 per week.[32] I found the husband had done some maintenance to both properties, which was modest in circumstances where he had the benefit of occupation of the properties. The wife incurred rent from separation until her death in August 2018.

[32] 2018 Reasons, paragraph 101.

64I accept the husband has likely maintained Property B between July 2018 and trial, which requires recognition. He has had the benefit of that accommodation.

65I previously observed if the husband received $75,000 from Property A that would amount to approximately 8% of the available assets, which required recognition.[33] Property A is no longer part of pool 1, so that is no longer the case.

[33] 2018 Reasons, paragraph 101.

66After careful consideration of the evidence, in the exercise of my discretion, I assess the parties’ contributions to pool 1 to be equal.

Assessment of Contributions to Pool 2

67The husband’s mother died prior to separation. The husband was excluded from his mother’s will and only achieved his entitlements, following litigation which concluded in 2013, some two years prior to the parties’ final separation. The husband has still not received his entitlements, nearly five years after separation. Receipt of any of the proceeds of Property A will occur many years after separation.

68There was no evidence from the wife to suggest that she made any contributions to the husband’s entitlements to Property A, to the litigation or that she contributed to the husband’s mother, within the meaning of s 79. I acknowledge the husband pursued his entitlements during the marriage.

69I am satisfied the wife did not contribute and that the husband’s entitlement to an interest in Property A arose in his own right. I am fortified in my findings, in light of the approach proposed by the Legal Personal Representative. I assess the husband’s contributions to pool 2 at 100%.

Assessment of Contributions to Pool 3

70The husband’s primary position was that the parties’ contributions be assessed as equal. However, that was predicated on the basis of the Court adopting his proposals in terms of the property available for division. The Legal Personal Representative says the husband made no contributions, or at best, his contributions were negligible.

71The husband’s Senior Counsel directed the Court’s attention to the case of Yeates (as executor for Mr Yeates) & Yeates [2013] FCWA 117. In Yeates, the husband died after separation and prior to division of property. During the marriage, the husband and wife had jointly consulted with a financial planner. In reliance of that financial advice, they made a number of investments, took out life/trauma insurance policies and built up superannuation. During the marriage, each party nominated the other as the beneficiary of their insurance and superannuation entitlements.

72Prior to the husband’s death, he executed a new will and nominated his son as the beneficiary of his superannuation and insurance policies. The husband received an insurance payment and gave part of the proceeds to his son, which the wife sought be notionally added back to the asset pool. She also sought to set aside transactions in which the husband made payments to his adult son.

73Thackray CJ observed the husband’s insurance payment was “not without complexity and reasonable minds could differ about the most appropriate approach”.[34] In determining the most just and equitable outcome, his Honour found the following facts were significant:

(a)The parties’ primary motivation for taking out the life insurance was to discharge their mortgages and investment loans, in the event that either died or suffered medical trauma.

(b)The premiums on the insurance policies were jointly funded or, based on his findings, should be treated as joint contributions and were made on policies held over the life and health of each party.

(c)Both parties were content for the other to receive the benefits of the insurance policies when their relationship was intact.

(d)There was no evidence that either party gave thought to what would happen to the insurance policies, if their relationship ended, but faced with the husband’s impending death, he had decided to nominate his son from a previous relationship as the beneficiary.

(e)The insurance payment became available “for one reason and one reason only – the husband’s ill health and subsequent death”. While the wife relied upon the payment of premiums over a number of years, only the last premium payment directly related to the payout received.

(f)The payments on premiums for the insurance policies, stood in stark contrast to the joint payments towards superannuation.

[34] Paragraph 181.

74His Honour reviewed a number of cases in which similar issues had arisen, observing that such examination must be approached with caution, since all involved the exercise of judicial discretion and may have had a different outcome, had the litigation been conducted differently.[35]

[35] Paragraph 182.

75In Miller & Miller [2009] FamCAFC 121 the parties had obtained income protection insurance, the premiums for which were paid from a joint account during the marriage, which continued after separation. The husband suffered a heart attack and received an insurance payment of $90,200. By the time of the trial, only $700 remained. The Federal Magistrate, at first instance, determined the portion of the payment which had discharged debts should be notionally added back, together with the associated liabilities. The Federal Magistrate declined to add back the balance of the payment which the husband had spent, despite his lack of disclosure to fully account for that expenditure. The Federal Magistrate found the insurance payout was “the most significant post separation contribution”, it was a joint decision to obtain the policy, such that both parties’ had contributed to the funds, however the husband made greater direct financial contributions.

76On appeal, Strickland J observed, if the proceeds of the insurance policy had remained intact at the time of trial, they would have been included in the asset pool.[36] The receipt of the funds after separation did not alter that fact.[37] His Honour found the Federal Magistrate erred in failing to add back the balance of the insurance payment not applied to meet joint debts, given the husband’s failure to satisfy his expenditure had been applied towards his reasonably incurred, necessary living expenses.

[36] Miller & Miller (Supra) at [73].

[37] At [73] citing Farmer & Bramley (Supra) and C and T (Supra).

77Strickland J rejected the wife’s argument that the Federal Magistrate had erred in treating the insurance payment as though it were damages or compensation payment. His Honour, at [101], stated:

…This payment was not a windfall. It was a payment received by the husband because he suffered a heart attack. It matters not that it was a minor attack from which he recovered. Despite the husband’s good fortune in this regard, his health into the future is “significantly compromised”…Thus, although the fact that it was a joint decision to take out the insurance and fact that the premiums were maintained out of the parties’ joint funds can be treated as contributions by each of the parties, there still needed to be a life-threatening event before a payment could be made. It is simply not open to the wife to argue that the parties have contributed equally to this payout. It is the husband’s money to which the wife has made an indirect contribution of a relatively minor nature.

78In Yates & Yates [2012] FamCAFC 138 the wife was diagnosed with Hodgkin’s Lymphoma and received $190,000 from her insurance policy, of which $120,000 was used to pay the mortgage. On appeal, the Full Court (Finn, Strickland and Johnston JJ) considered the assessment of contributions to that policy. The Full Court distinguished the facts from Miller (supra) as “all the relevant events including the circumstances surrounding the taking out and the maintenance of the insurance policy as well as the use of the fund during the marriage, but more particularly their use as an aspect of the parties’ ongoing financial relationship, occurred prior to separation”.[38] They observed every case will require an assessment to determine whose contribution it is “and there may be many permutations of that…Importantly that decision as to whose contribution it is will depend very much on the evidence that is before the judicial officer”.[39]

[38] Yates (Supra) at [99].

[39] Yates (supra) at [100].

79After reviewing a number of other relevant cases, Thackray CJ assessed the husband’s contributions towards the insurance monies at 75%, and the wife’s at 25%.

80In turning to the current case, after careful consideration of the relevant facts and in view of the authorities, I am satisfied the TPD payment should be assessed as entirely the wife’s contribution. At best, the husband has made indirect contributions, of a minor nature. I have reached that conclusion for the following reasons:

•Had the wife not been diagnosed with a terminal illness, her potential entitlements would have been entirely ignored, since they would have had no value. The unfortunate reality is that the TPD payment only became available, as a consequence of the wife’s terminal illness and death.

•The TPD payment was received by the wife some three years after separation, but not spent by her.

•While the wife was diagnosed with a terminal illness in 2013, she continued to work on a full-time basis until after separation. The wife’s case was that the husband’s conduct towards her was far from supportive and included acts of family violence.[40] I was not satisfied the evidence supported a finding that the husband’s conduct made the wife’s contributions more onerous. However, I accepted the wife’s evidence, corroborated by the husband’s adult sons, that the husband had been violent towards the wife. The husband hit the wife which resulted in the parties’ separation and that was not the first occasion when he had been violent. The wife’s employer had been concerned about the wife’s safety from May 2014, and lent her money to assist her in separating. The husband did not suggest that he had assisted in caring for the wife following her diagnosis. I am satisfied he did not.

•There is no evidence to support a finding the husband and the wife jointly decided to obtain insurance during their marriage, nor any evidence of their joint intention of the purposes of such policies. The husband did not suggest he was aware of the wife’s insurance.

•The wife’s entitlements to the TPD payment arose due to the payment of premiums, which appear to have been met through her compulsory superannuation contributions. There was no suggestion that any joint funds were applied in that regard. While premium payments were made during the marriage, over a number of years, only the final premium payment, made in March 2018, directly relates to the TPD payment. The previous premium payments simply provided cover for the period of the premium.[41]

•There was no evidence as to who was the nominated beneficiary of the wife’s insurance benefits during the marriage. After separation, she nominated the Legal Personal Representative.

[40] 2018 Reasons at 94 – 98.

[41] Yeates (supra) at [181].

81In my discretion I consider the wife’s contribution to pool 3 should be assessed at 100%.

Conclusions as to Contributions

82Given my findings as to contributions to pool 1 being equal, that assessment will see each party retain assets worth $425,842.50. The husband will retain 100% of pool 2, which I am unable to quantify. The Legal Personal Representative will retain 100% of pool 3, being $241,823. As a result of my inability to make findings of the value of pool 2, it is not possible to be precise as to the total of the three pools.

83It is still necessary to look at the global effect of the assessment. The Legal Personal Representative will receive $667,665.50. The husband will receive $425,842.50 and the entirety of pool 2.

WHAT IS THE ASSESSMENT OF SUBSECTION 75(2)

84In the 2018 Reasons I found[42] the wife was entitled to an adjustment of 7.5% on account of s 75(2) factors, due to her being unable to work, her dependence upon a disability pension which was insufficient to meet her reasonable needs, meaning the wife would be reliant on capital to meet her needs, the unpredictability of the wife’s future needs, her limited life expectancy, and my findings that the wife’s reasonable expenses to support herself exceeded those of the husband.

[42] 2018 Reasons, refer to paragraphs 106, 114,122,136 and 139.

85Senior Counsel on behalf of the Legal Personal Representative concedes, appropriately, that it is no longer appropriate for there to be any s 75(2) adjustment in her favour.

86The husband seeks a 15% adjustment in his favour, in light of his age, his income earning capacity, his limited future working life and his future needs. The Legal Personal Representative opposes any adjustment in the husband’s favour.

87The husband’s Senior Counsel referred to findings in the 2018 Reasons about his health, income earning capacity, reasonable expenditure, amongst other factors and specifically:

115.[The husband] had [major surgery] and was certified fit to resume work since October 2015. While [the husband] says his health impacts on his capacity to work, there was no admissible evidence to support such a finding. [The husband] is currently working and has worked since undergoing surgery.

116.[The husband] is currently employed on a contract with [Company A] earning around $2,200 gross per week or $116,000 gross per-annum. He is a qualified [engineer], with experience in [various mining-related] industries. [The husband] acknowledged his qualifications and experience were likely to be in demand with the recent announcement of various mine expansions, [which include several mining companies].

117.While [the husband] deposed to his efforts to seek employment in the period post-separation, he conceded that he had not made any direct approaches to those companies. His evidence in terms of his efforts to gain employment was scant and did not suggest to me that he had made serious or genuine attempts to return to work.

...

120.… [The husband]’s weekly expenditure is around $658 per week, which is significantly less than his current weekly income.

…

129.Both parties are entitled to a reasonable standard of living. In my view, [the husband]’s income together with the value of the property available for division, is sufficient to satisfy this requirement.

…

135[The husband] has a greater income earning capacity. [The wife] has no ability to earn an income. She is in poor health and she has a reduced life expectancy. While I acknowledge [the husband] has had limited periods of employment since separation, he has made only limited efforts to obtain employment. He conceded that his skills in [engineering] were in demand in the current economic climate in Western Australia. [The husband]’s current employment and income support such a finding. In my view, [the husband] is able to continue to work.

136[The wife]’s reasonable expenses to support herself exceed those of [the husband], as a result of her health. [The wife]’s entitlements will need to be applied by her towards her support. I accept that [the wife] is meeting the costs of her sister, which offset the care she provides. If [the wife]’s sister is unable to remain in Australia and provide ongoing care, then it would appear that [the wife]’s costs will increase significantly if she is required to pay third parties to provide those services to her. [The wife]’s reduced life expectancy does not mean that she should be denied her right to dispose of assets to which she is entitled.

88The husband was employed with [Company A] until he was made redundant on 31 August 2018. From September 2018 until October 2019 the husband approached six employment agencies seeking employment. The husband also approached a number of potential employers.

89From November 2018 to 12 October 2019 the husband received Centrelink payments of $260.97 per week. As a condition of those payments, the husband was required to actively pursue employment, which he did, without success.

90On 14 October 2019 the husband obtained employment with [Company B], earning around $1,600 net each week. The husband’s employment ceased on 25 March 2020.

91The husband’s unchallenged evidence was that his employment ended “by reason of redundancy”. The termination letter made no mention of any redundancy. Company B wrote that the husband’s last day of employment was 25 March 2020 “as requested by you during our meeting”, being the date which was “mutually agreed”.

92The husband says he has again applied for Centrelink benefits and expects to be eligible for $507.85 per week from 27 April 2020. He says his weekly expenses of $658 and his legal fees are being supplemented by his savings.

Conclusions

93The husband is now 62 years of age. I accept he has a reduced working life, given his age. The evidence supports a finding that the husband continues to have a significant income earning capacity, demonstrated by his recent employment, in which he generated an income the equivalent to $135,000 gross per annum. I accept the husband has not been able to consistently work. At times, he has been reliant on government benefits, supplemented by his savings. The evidence now supports a finding that the husband has made genuine efforts to seek employment.

94The husband has the capacity to work and when he does, his income exceeds his reasonable needs. While the husband has been unemployed, he has supplemented his government benefits with savings. I accept he has been required to draw on capital for his support, in the form of funds distributed to him from the sale of Property C. I note that capital, in the form of savings which exceeded $50,000 in 2018, is not reflected in the asset pool.[43]

[43] 2018 Reasons, paragraphs 37, 41.

95The husband will retain Property B, debt free and have the benefit of ongoing occupation of the home. The husband is currently not working. The circumstances in which the husband ceased his most recent employment, are most unclear.

96The wife had the benefit of funds which she spent prior to trial, which were not reflected in the asset pool. The husband similarly has had the benefit of funds, which are not reflected in the asset pool.[44]

[44] 2018 Reasons, paragraphs 37, 41, 132, 158.

97The wife’s expenditure of part of her superannuation entitlements, not reflected in the schedule, is a material consideration, in circumstances where those entitlements arose during the course of the parties’ relationship, and which the husband should be considered to have made contributions to.

98I accept as a consequence of the wife’s death, it is no longer appropriate for there to be any adjustment in her favour as, self-evidently, she longer has any future needs for her support. I accept the husband’s claim, in so far as it was based on s 75(2) factors, is required to be given more weight, where there is no completing claim to be weighed against it.

99I must be satisfied whether in light of the husband’s contribution‑based entitlements, it is just and equitable to make any adjustment for s 75(2) factors. Or, put another way, is the husband adequately catered by his portion of the property, given my findings as to his contributions? After careful consideration of the evidence, I am satisfied there should be a modest adjustment in favour of the husband.

100The Court is not required to express an assessment in percentage terms, while that is often a convenient approach, which is adopted. The Full Court have approved the allocation of a lump sum by way of an allowance for s 75(2) factors, in certain circumstances.[45] In my view, that approach is preferable in this case, where I am unable to determine the value of pool 2. As a consequence, it would be artificial and unhelpful to attempt to express the assessment in terms of a percentage.

[45] For example: Re Parrott v Public Trustee of NSW (1994) FLC 92-473.

101In the exercise of my broad discretion, I consider that the husband should receive a payment of $60,000. Or expressed another way, that amounts to around 7% of pool 1.

IS THE OUTCOME JUST AND EQUITABLE?

102I must consider the practical consequences of the orders I propose to make. It is impossible to be precise about the husband’s entitlements, given the uncertainty as to the value of his interest in Property A.

103I am not satisfied it is appropriate for the Legal Personal Representative to share in the proceeds of Property A. I do not intend to repeat my observations about the delay in the sale. These proceedings have been on foot for some time. The Court has a duty to end financial relations between parties, as far as practicable.[46] To achieve that objective, the husband will retain his interest in Property A.

[46] Section 81 of the Act.

104To achieve the outcome I have determined, the husband will retain 50% of pool 1, pool 2 and a cash payment of $60,000. The Legal Personal Representative will receive 50% of pool 1, 100% of pool 3, less the cash payment of $60,000.

105The parties agree there should be a superannuation splitting order in favour of the Legal Personal Representative. The husband has significantly more superannuation. In my view, to achieve justice between the parties, $77,452 should be allocated to the Legal Personal Representative. That will achieve close to an equalisation of the respective superannuation entitlements. The fund has been afforded procedural fairness, which will enable an order to be made in those terms.

106The husband will receive a cash payment of $60,000. The orders I propose will provide the husband with his home debt free, his personal property, superannuation and a cash sum, in addition to his interest in Property A. It will provide the Legal Personal Representative with the wife’s personal property, superannuation entitlements of $115,153, the balance of the Controlled Account, together with the TPD payment. In the circumstances of this case, I am satisfied the orders I propose are just and equitable.

107The outcome I have determined is just and equitable is set out below:

POOL 1
DESCRIPTION	The husband	Legal Personal Representative
Shares	$7,774	$5,621
Furniture	$11,670	$440
[Motor Vehicle A]	$400
CBA Net Saver, Smart Access and Gold Saver	$16,249
Guns	$850
Controlled Account: balance of proceeds of [Property C]	$60,000	$144,507
[Property B]	$225,000
Paid legal fees	$49,342	$49,180
Funds held on Trust	$10,658	$58,877
NET ASSETS	365,294	$275,274
LIABILITIES
Credit card	$1,584
Debt to [the Legal Personal Representative]	$23,000
NET LIABILITIES	$24,584
NET ASSETS	$365,294	$250,690
SUPERANNUATION
Super Fund B	$13,776
[Country A] Pension	$23,925
[Super Fund A]	$120,548	$77,452
NET SUPERANNUATION ENTITLEMENTS	$120,548	$115,153
NET ASSETS & SUPERANNUATION	$485,842	$ 365,843
POOL 2 Interest in [Property A]	Not known
POOL 3 TPD Payment	$241,823

PROPOSED ORDERS

108Subject to hearing from the parties as to the form of the Orders, I propose to pronounce orders as follows:

CONTROLLED MONEY ACCOUNT

1.Forthwith, the parties do all acts and things and sign all documents necessary to cause the funds held in the controlled money account, (“Controlled Account”) to be disbursed as follows:

(a)The sum of $60,000 to the husband, to be paid to an account nominated in writing by the husband or his legal representative; and

(b)The balance, to the legal personal representative, (in her capacity as administrator of the estate of the wife) to be transferred to an account nominated in writing by the legal personal representative or her legal representatives (“Nominated Account”).

WIFE’S ESTATE’S ASSETS

2.All of the right, title and interest (if any) of the husband in the following vest in the legal personal representative (in her capacity as administrator of the estate of the wife) absolutely:

(a)the payout to the wife from her superannuation account with [Super Fund B] and any other monies paid by [Super Fund B] on account of the Wife’s total and permanent disability claim (which, for clarity, includes the balance of those funds held in the trust account of the lawyers for the legal personal representative);

(b)any funds standing to the credit of the wife or the wife’s estate in any account with any bank or financial institution;

(c)all furniture of the wife’s estate in the legal personal representative’s possession or control;

(d)any and all public company shares of the wife or the wife’s estate, including but not limited to those held in the wife’s share portfolio;

(e)any motor vehicles in the name of the wife or belonging to the wife’s estate, including but not limited to her [Motor Vehicle A]; and

(f)the wife’s [Country A] pension.

HUSBAND’S ASSETS

3.All of the right, title and interest (if any) of the estate of the wife in the following vest in the husband absolutely:

(a)[Property B], and the husband be at liberty to (at his cost) lodge a survivorship application with Landgate to have the property registered in his sole name;

(b)any funds standing to the husband’s credit in any account with any bank or financial institution (excluding the Controlled Account);

(c)all furniture in the husband’s possession or control;

(d)the husband’s guns;

(e)any motor vehicle in the husband’s name;

(f)any and all public company shares in the husband’s name, including but not limited to his [Company B];

(g)the husband’s interest in the estate of his late mother (noting that such estate comprises [Property A]); and

(h)subject to paragraphs 7 to 14 of these orders, the husband’s interest in any superannuation fund.

“CATCH ALL”

4.Except as otherwise provided in these orders, any property (including choses-in-action) and superannuation:

(a)in the husband’s possession or control, be retained by the husband solely and to the exclusion of the wife’s estate; and

(b)in the possession or control of the legal personal representative acting in her capacity as administrator of the wife’s estate by retained by the legal personal representative (acting in that capacity) solely and to the exclusion of the husband.

INDEMNITIES

5.The legal personal representative (in her capacity as administrator of the wife’s estate) shall be solely liable for and shall indemnify the husband against any debts, loans and liabilities encumbering any item of property to which the wife’s estate is entitled pursuant to these orders and any debts, loans or liabilities in the name of the wife or the administrator of the wife’s estate (in that capacity), including without limitation any credit cards.

6.The husband shall be solely liable for and shall indemnify the legal personal representative and the wife’s estate against any debts, loans and liabilities encumbering any item of property to which he is entitled pursuant to these orders and any debts, loans and liabilities in his separate name, including without limitation any credit cards.

SUPERANNUATION ORDERS

7.For the purposes of paragraphs 8 to 14 of these orders, the husband is referred to as the “Respondent” and the legal personal representative is referred to as the “Applicant”.

8.That pursuant to section 90XT(1)(a) of the Family Law Act 1975 (Cth), whenever a splittable payment becomes payable in respect of the interest of the Respondent in the Respondent’s [Super Fund A] (the “Fund”), the Applicant is entitled to be paid an amount calculated in accordance with part 6 of the Family Law (Superannuation) Regulations 2001 (Cth), using a base amount, at the operative time of seventy-seven thousand four hundred and fifty-two Australian dollars (AUD$77,452) and there be a corresponding reduction in the entitlement that the Respondent would have had in the Fund but for these orders.

9.That the operative time shall be the fourth business day after the day on which a sealed copy of these orders is served on the Trustee of [Super Fund A] (the “Trustee”) of the Fund.

10.If at any time after the operative time the Applicant (who the parties note is the legal personal representative for [Ms Kozak], the deceased former wife of the Respondent) requests in writing that the Applicant’s entitlement pursuant to paragraphs 8 and 9 of these orders be:

(a)rolled over or transferred to a separate superannuation fund account in the name of the late [Ms Kozak], or the Applicant as legal personal representative for the late [Ms Kozak], either with [Super Fund A], or with another superannuation fund, as nominated by the Applicant; or

(b)paid out in cash to the estate of the late [Ms Kozak],

and it is lawful for the Trustee of the Fund to comply with such request, the Trustee will comply with such request as soon as practicable after the request is made.

11.That the Trustee of the Fund is bound by orders 8 to 10 hereof in relation to superannuation and the Trustee, the Applicant and the Respondent, do all such things as may be necessary for the Trustee to calculate the entitlement of, and make payment to the Applicant in accordance with orders 8 to 10 hereof.

12.Orders 8 to 11 hereof are subject to the Trustee of the Fund being given procedural fairness and consenting to the splitting orders referred to above.

13.The parties each pay their legal cost of implementing the provisions of orders 8 to 11.

14.Subject to orders 8 to 11, the parties each are declared to own their respective superannuation entitlements.

GENERAL

15.The parties do all acts and things and sign all documents as are necessary to give effect to these orders.

16.All previous orders be discharged, save and except for the order substituting [Ms Morrison] as the legal personal representative of the applicant, [Ms Kozak], pursuant to section 79(8) of the Family Law Act 1975 (Cth).

17.All applications and responses filed in these proceedings otherwise be dismissed, save and except for any application for costs.

18.All documents produced by named persons pursuant to subpoena be returned or destroyed in accordance with the request from the named person on the expiration of 42 days from the date hereof.

19.In relation to material tendered as an exhibit into evidence in these proceedings, on the expiration of 42 days from the date hereof, all material tendered as an exhibit into evidence, save and except for material produced pursuant to subpoena, be destroyed by the Court without notice to the parties.

20.In the event of an appeal being lodged prior to the expiration period of 42 days, paragraphs 18 and 19 above do not apply.

I certify that the preceding paragraph(s) comprise the reasons for decision of the Family Court of Western Australia.

CD

Secretary

21 SEPTEMBER 2020