LEDA & KOUROS

FAMILY COURT OF AUSTRALIA

LEDA & KOUROS

[2019] FamCA 874

FAMILY LAW – JURISDICTION – De facto – where the parties separated prior to March 2009 – where the de facto wife had failed to file an opt-in document in accordance with the Family Law Rules 2004 (Cth) in order to enliven the jurisdiction of the Family Law Act 1975 (Cth) pursuant to sub-item 86A of the Family Law Amendment (De Facto Financial Matters and Other Measures) Act 2008 (Cth) – where both parties intended to opt-in to the jurisdiction and continued to final hearing on the basis they had done so – where the parties satisfied sub-item 86A(5) and successfully opted-in to the jurisdiction of the Family Court – where r 2.02 of the Rules is dispensed with – jurisdiction enlivened.

FAMILY LAW – PROPERTY – where the parties were in a de facto relationship – where they have a child together – where the parties had been separated for 12 years at the time of the hearing – where there were greater initial financial contributions made by the de facto husband – where the de facto wife made greater non-financial contributions during the relationship and post separation – where the de facto husband has contributed nominal financial support for the child since separation and is unlikely to contribute in the future – where the de facto husband dissipated assets from the parties’ asset pool post separation as a result of gambling – final orders providing for the division of assets of 53/47 in favour of the de facto husband.

Evidence Act 1995 (Cth) s 140
Family Law Act 1975 (Cth) ss 90SM, 90SF, 117
Family Law Amendment (De Facto Financial Matters and Other Measures) Act 2008 (Cth) item 86A
Family Law Rules 2004 (Cth) rr 1.12, 2.02, 19.18

Briginshaw v Briginshaw (1938) 60 CLR 336
Darrow & Malden & Ors [2017] FamCA 497
Gallo v Dawson (1990) 93 ALR 479
Gao & Wang (2016) FLC 93-735
I and I (1995) FLC 92-625
Kowaliw & Kowaliw (1981) FLC 91-092
Re F: Litigants in person guidelines (2001) FLC 93-072
Stanford & Stanford (2012) 247 CLR 108

APPLICANT:

Ms Leda

RESPONDENT:

Mr Kouros

FILE NUMBER:

MLC

1450

2016

DATE DELIVERED:

25 November 2019

PLACE DELIVERED:

Melbourne

PLACE HEARD:

Melbourne

JUDGMENT OF:

Johns J

HEARING DATE:

30 & 31 October 2017 and 2, 27 & 28 November 2017 and 15 August 2019 & 11 October 2019

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr Atkinson and Mr Matta

SOLICITOR FOR THE APPLICANT:

Sayer Jones

THE RESPONDENT:

Mr Kiernen, Mr Kouros in Person, Mr Robinson and Mr Ham

Orders

(1)That the applicant do all such acts and things and sign all such documents as may be required to transfer to the respondent at his expense all of her right, title and interest in the real property situate at and known as Street S, Suburb T in the State of Victoria.
(2)That contemporaneously with the transfer referred to in order (1) hereof, the respondent do all such acts and things as may be required to indemnify the applicant against all payments and liabilities pursuant to any mortgage, apportionable rates, notices, taxes and outgoings of or in relation to the Street S, Suburb T property.
(3)That the proceeds of sale of the property at Street H, Suburb J, held in trust for the parties by HH Lawyers be applied as follows:-
(a)First the sum of $15,304.47 be paid to the Commonwealth in relation to the respondent’s registrable maintenance liability pursuant to s 30 of the Child Support (Registration & Collection) Act 1988, relating to unpaid child support payable to the applicant;
(b)Second, the balance then remaining to the wife.

(4)That unless otherwise specified in these orders and save for the purposes of enforcing the payment of any money due under these or any subsequent orders:-
(a)Each party be solely entitled to the exclusion of the other to all property including choses-in-action in the possession of such party as at the date of these orders;
(b)Any money standing to the credit of the parties in a bank account are to be retained by the party in whose name the account appears;
(c)Each party forgoes any claim they may have to any superannuation benefit that is belonging to or owned by the other;
(d)All insurance policies are to become the sole property of the owner named thereon; and
(e)Any joint tenancy of the parties in any real or personal estate is hereby expressly severed.

(5)That the husband pay the wife’s costs as follows:-
(a)The sum of $5,400.00 in respect of the wife’s costs of 31 October 2017; and
(b)The sum of $5,000.00 in respect of the wife’s costs of 2 November 2017.

(6)That all extant applications be otherwise dismissed.

IT IS DIRECTED
(7)That all documents produced to the Court pursuant to subpoena and exhibits relied upon by the parties be returned by the subpoena clerk of the Family Court o Australia, Melbourne Registry, to the person or organisation who produced same after the expiration of thirty (30) days from the date of these orders, or otherwise upon the conclusion of any appeal.

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 Leda & Kouros 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 MELBOURNE

FILE NUMBER: MLC 1450 of 2016

Ms Leda

Applicant

And

Mr Kouros

Respondent

REASONS FOR JUDGMENT

Introduction

The applicant de facto wife, Ms Leda, and the respondent de facto husband, Mr Kouros, filed applications seeking orders for the adjustment of their property interests pursuant to Part VIIIAB of the Family Law Act1975 (Cth) (“the Act”). For ease of reference and without any disrespect to either party, I will refer to them as the “husband” and the “wife”.
This case has an unusual history; the parties separated in 2005 but did not commence proceedings to resolve their financial dispute until 2016.
The provisions of the Act which give this Court jurisdiction over financial disputes between de facto parties specifically confers power in relation to de facto relationships which broke down on a final basis after 1 March 2009. Parties to relationships which end prior to that date may “opt in” to the regime prescribed under the Act, provided they comply with the provisions of the Family Law Amendment (De Facto Financial Matters and Other Measures) Act 2008 (Cth) (“the Amendment Act”).
The parties filed an application for consent orders on 22 February 2016. As the parties’ relationship ended prior to 1 March, 2009 the parties, who were both represented by lawyers at the time, swore and filed affidavits confirming that they wished to “opt-in” and invoke the provisions of the Act. Those affidavits did not meet the requirements of the Amendment Act.
That application came before Macmillan J in a Judicial Duty List on 6 July 2016. At that hearing, the Court was informed by the husband’s counsel that the parties had invoked the Court’s jurisdiction pursuant to the provisions of item 86A of the Amendment Act.[1] The proceedings were not finalised by the Court that day and were adjourned to enable the filing of further material.
[1] Exhibit R-1, Transcript of hearing on 6 July 2016, p 2.
Following that hearing, the wife sought leave to file an Initiating Application seeking final property orders. That application was filed some nine years after the parties’ separation. That application came before Macmillan J on 10 August 2016, who made orders by consent granting leave pursuant to s 44(6) of the Act for the wife to proceed with her Initiating Application filed out of time.
The matter proceeded to a Conciliation Conference before a Registrar and in August 2017 was allocated to a judicial docket for final hearing. The wife’s amended Initiating Application filed 7 August 2017 and the husband’s Response to Initiating Application filed 8 August 2017 proceeded to final hearing in October and November 2017. Judgment was reserved.
Following that hearing and whilst judgment was reserved, it became apparent that there was no evidence before the Court that the parties had complied with the requirements of the Amendment Act so as to invoke the Court’s jurisdiction. As a result the matter was listed for mention and the parties were alerted to that issue and provided an opportunity to address the same.
The matter was further complicated as the wife had changed lawyers during the course of the proceedings and at the mention hearings that followed, it emerged that documents relating to the invoking of the Court’s jurisdiction had not been provided to her current lawyers. As a result, what followed was a series of adjournments to provide the parties with the opportunity to obtain documents in order to satisfy the Court that the legislative requirements of the Amendment Act had been satisfied.
I heard submissions as to whether the Court had jurisdiction to determine the parties’ competing property applications over two days in August and October, 2019.
For the reasons set out hereunder I am satisfied that the Court’s jurisdiction has been invoked in accordance with item 86A of the Amendment Act. Given that position, I also provide my reasons for judgment with respect to the parties’ competing property applications.

Does the Court have jurisdiction to determine the property applications?

Legislation

The opting-in provisions are found at item 86A of the Amendment Act.
Item 86A(2) provides that a choice may be made by the parties to “opt-in” to the jurisdiction if the choice is unconditional and the requirements of sub-items (3), (4) and (5) of item 86A have been satisfied. A choice to opt-in is unconditional unless set aside by the Court.
Item 86A(5) provides for the technical requirements in order to opt-in. It provides that those requirements are satisfied if:-
(a)the choice is in writing and signed by both of the parties to the de facto relationship; and
(b)each of the parties was provided, before the choice was signed by him or her, with:-
(i) independent legal advice from a legal practitioner about the advantages and disadvantages, at the time that the advice was provided, to the party of making the choice; and
(ii) a signed statement by the legal practitioner stating that this advice was given to the party.
In addition to the requirements under the Amendment Act, r 2.02(1) of the Family Law Rules 2004 (Cth) (“the Rules”) stipulates the documents required to be filed by parties to a de facto relationship who seek to invoke the Court’s property jurisdiction. That Rule provides:-
A person must file with an application mentioned in an item of Table 2.2, the document mentioned in the item if the document has not already been filed.
Table 2.2 of the Rules provides for the documents to be filed with applications. Item 2B of that table provides that for parties seeking an order relating to a de facto relationship, they must file an Initiating Application and a document that satisfies the requirements of sub-item 86A(5) of the Amendment Act. It is common ground that there was no document filed with the wife’s Initiating Application which addresses the requirements of sub-item 86A(5). It is submitted on behalf of the wife that the requirements of r 2.02(1) ought to be dispensed with pursuant to r 1.12 of the Rules. The husband opposes that application.
The requirements of sub-item 86A(5) are mandatory. That this is so was noted by Rees J in Darrow & Malden & Ors [2017] FamCA 497 where her Honour stated:-
[29] It follows from the clear language of item 86A, that for a former de facto couple to “opt in” to the provisions, the following steps must occur:
·They must make an informed choice to do so;
·The choice must be evidenced in writing signed by both parties;
·Before the document evidencing the choice is signed, each of the parties must be provided with independent legal advice by a legal practitioner about the advantages and disadvantages, at the time the advice was provided, to the party making the choice;
·Each of the legal representatives must provide a signed statement to the effect that the advice had been given.
[30]Nothing in the language of 86A(5) could be interpreted to suggest that compliance with that provision is optional. The terms of the Explanatory Memorandum support the conclusion that compliance with 86A(5) is mandatory.
I respectfully agree with Rees J as to the obligations of the parties and their lawyers as identified at sub-item 86A(5).
As to the position in this matter, in my view there can be no doubt that at the time the parties filed their application for consent orders on 22 February 2016, it was their intention to invoke the jurisdiction of this Court. Following the filing of that application, each party filed an affidavit purporting to so invoke the Court’s jurisdiction.
In support of the application for consent orders, on 26 April 2016 the wife filed an affidavit purporting to exercise her election to opt-in to the jurisdiction of the Court. Her affidavit filed 26 April 2016 provides as follows:-
7.I was advised by my lawyers that because the De Facto Relationship ended prior to 1 May 2009, in order for the Consent Orders to be accepted by the Family Court I am required to formally “opt-in” to invoke the provisions of the Family Law Act 1975 (Cth) (“the Act”).
8.I make this affidavit in support of the Consent Orders and to invoke the jurisdiction of the Act, as described herein.
Similarly, the husband filed an affidavit on 9 May 2016 in which he too sought to “opt in” to the jurisdiction. To that end he deposed as follows:-
7.I am informed by my solicitors and believe that, because the de facto relationship ended prior to 1 March 2009, in order for the consent orders to be filed with and accepted by the Court I am required to make an opting in statement invoking the jurisdiction of the Family Law Act1975 (Cth) (“the Family Law Act”).
8.I make this Affidavit in order to opt in to invoke the jurisdiction of the Family Law Act as described above in this my [sic] Affidavit.
9.I have received independent legal advice from my solicitors to this effect and wish to opt in as described above in light of that advice.
Although both parties deposed as to their intention to opt-in to the jurisdiction, it is clear from those affidavits that the parties had not complied with the requirements of item 86A of the Amendment Act; neither party provided evidence that they had been advised by their lawyers as to the advantages or disadvantages of opting-in, nor had they produced statements signed by their lawyers confirming that such advice had been given to them.
As noted in the transcript of proceedings dated 6 July 2016, by the time the matter came before Macmillan J it was submitted on behalf of the husband that an opting-in document had been executed by the husband in June 2016 and that a similar document had been executed by the wife that day.
The position insofar as it relates to the husband was clarified during a mention hearing before me on 21 February 2019. That day, counsel for the husband tendered two documents, namely:-
·Application to opt-in to the family law provisions dated 24 June 2016 and signed by the husband (Exhibit A-1); and
·Signed statement from the husband’s lawyer dated 24 June 2016 (Exhibit A-2).
Exhibit A-1 is a statement signed by the husband in which he confirms his choice for Parts VIIIAB and VIIIB and sub-section 114(2A) of the Act to apply in relation to the de facto relationship between he and the wife and for that purpose he acknowledges that:-
·That choice is unconditional;
·That choice is irrevocable;
·There is no order under a preserved law of a State or Territory in relation to either how all or any of the property or financial resources of the parties is to be distributed or the maintenance of either party;
·No financial agreement pursuant to any State or Territory law dealing with the de facto financial matters has been entered into or is currently in effect;
·He was provided before signing the statement with independent legal advice from a legal practitioner about the advantages and disadvantages at the time the advice was provided of making his choice; and
·A signed statement by that legal practitioner stating that the advice was given to him is attached.
Exhibit A-2 is the statement of legal advice provided to the husband by his lawyer. That statement confirms that the husband’s lawyer advised the husband independently of the wife and before he signed his choice pursuant to item 86A as to the advantages and disadvantages at the time that the advice was given to the husband of making that choice. Further, the lawyer certified that he is a legal practitioner for the purposes of item 86A.
Having regard to Exhibits A-1 and A-2, I am satisfied that the requirements of item 86A insofar as they relate to the husband, have been met.
At issue is whether the wife has met the requirements of item 86A. The husband’s lawyer submits that where parties elect to opt-in in accordance with the provisions of item 86A, such choice must be so made in one document. It was submitted that in circumstances where the parties have executed separate documents exercising their choice, the requirements of the Amendment Act have not been met.
In support of her contention that she had complied with the requirements of item 86A, the wife relied upon Exhibit R-2, being the statement of independent legal advice signed by her lawyer dated 5 July 2016. The wife also relied upon Exhibit R-3, which is a copy of the application to opt-in signed by the wife, also dated 5 July 2016.
In addition to those documents, the wife relies upon the transcript of the proceedings on 6 July 2016 which contains submissions made on behalf of the wife that confirm her having executed documents that day exercising her choice to opt-in to the jurisdiction.
Reliance is also placed on the evidence of the wife’s former solicitor, Ms JJ who prepared the opt-in documents and deposes that she witnessed the same. Ms JJ also executed the statement as to independent legal advice (Exhibit R-2).
The wife’s former lawyer, Ms JJ swore an affidavit on 26 April 2019 regarding the circumstances of the preparation and execution of Exhibits R-2 and R-3. That affidavit was filed 13 May 2019. At paragraph 7 of that affidavit, Ms JJ deposes that the wife signed the opt-in statement on 5 July 2016, being the day prior to the hearing before Macmillan J.
At paragraph 12 of that affidavit, Ms JJ deposes that the opt-in notice was placed in a white “work in progress” folder following its execution. She deposes that that folder was kept separate from the rest of the wife’s file. Further, Ms JJ deposes as to her enquiries of her former firm to locate the white folder. That folder was unable to be located by the wife’s former solicitors.
Ms JJ also deposes that she conducted a data recovery search on her old laptop and at paragraph 18 of her affidavit, states that on 25 March 2019 she successfully retrieved from her computer a signed copy of the opt-in notice. It is that document that has been produced by the wife and tendered as evidence of her exercising her choice pursuant to item 86A.
Both the wife and Ms JJ were cross-examined in relation to their evidence as to the documents signed by the wife.

During her oral evidence, the wife confirmed that the signature on page two of Exhibit R-3, being the opt-in statement, was her signature. She confirmed that she did not date the document but did recall signing it. The wife’s evidence was that the document was signed in the presence of her former lawyer at a café located next to the Court. The wife confirmed that the document was not signed prior to the commencement of the hearing that day but rather during a period when the matter was stood down.
The wife was unable to explain why the document was dated 5 July 2016, being the preceding day. The wife was challenged as to whether the signature on the document was hers. The wife was steadfast in her evidence that she had signed the document.
Counsel for the husband sought to challenge the wife’s evidence, it being his position that the wife has not executed an opt-in document in accordance with sub-item 86A(5).
The husband relies upon the affidavit of Ms F, Forensic Document Examiner filed 2 August, 2019 in support of that contention. Annexed to that affidavit is a report of Ms F dated 31 July 2019. Ms F details in her report her analysis of Exhibit R-3, being a copy of the signed opt-in document, a copy of the wife’s Financial Statement sworn 9 August 2016 and “specimen” documents, being the wife’s affidavit sworn 3 August, 2016, her Financial Statement sworn 18 October 2017 and her affidavit sworn 30 October 2017.
Ms F was engaged by the husband to determine “Whether or not [the wife] signed the original of the Opt-in Agreement and the Questioned Financial Statement”. In completing her report Ms F acknowledged that all documents produced to her for examination were reproductions. As such, she conceded that this placed limitations on her analyses as her examination of the signatures was limited to their pictorial features; she noted that it was often not possible to determine with certainty the finer details of structure and dynamics, such as fluency and pen pressure variations. At the conclusion of her report Ms F speculates that the signature on the opt-in statement could be as a result of a “cut and paste manipulation” or as a result of “freehand tracing”. Nonetheless, she concedes that in order to determine with certainty how the signature was produced, she would need to examine the original document.[2] There was no challenge to that evidence.
[2] Affidavit of Ms F filed 2 August 2019, para 26.
Counsel for the wife submits that the Court should exercise a high degree of caution with respect to Ms F’s evidence, given the qualifications and limitations she acknowledges in her assessment as a result of the original documents not being available for inspection. In support of that submission counsel for the wife submitted that the gravity of the issues in dispute must be borne in mind and he relied upon the observations of Dixon J in Briginshaw v Briginshaw (1938) 60 CLR 336 (“Briginshaw”) at pages 361-362 as follows:
The truth is that, when the law requires the proof of any fact, the tribunal must feel an actual persuasion of its occurrence or existence before it can be found. It cannot be found as a result of a mere mechanical comparison of probabilities independently of any belief in its reality. No doubt an opinion that a state of facts exists may be held according to indefinite gradations of certainty; and this has led to attempts to define exactly the certainty required by the law for various purposes. Fortunately, however, at common law no third standard of persuasion was definitely developed. Except upon criminal issues to be proved by the prosecution, it is enough that the affirmative of an allegation is made out to the reasonable satisfaction of the tribunal. But reasonable satisfaction is not a state of mind that is obtained or established independently of the nature and consequence of the fact or facts to be proved. The seriousness of an allegation made, the inherent unlikelihood of an occurrence of a given description, or the gravity of the consequences flowing from a particular finding are considerations which must affect the answer to the question whether the issue has been proved to the reasonable satisfaction of the tribunal. In such matters “reasonable satisfaction” should not be produced by inexact proofs, indefinite testimony or indirect inferences.
The allegations made by the husband as to the conduct of the wife and her former lawyer are extremely serious; it is his case that either Ms JJ alone or in concert with the wife, has forged documents so as to mislead the Court. The consequences for the wife and her former lawyer were there to be a finding as sought by the husband are significant. Having regard to the evidence of Ms F and particularly the acknowledged limitations and qualifications to that evidence, in my view to rely upon it would be to rely on the type of inexact proofs and indefinite testimony contemplated by Dixon J in Briginshaw. Accordingly, I accept the submission of the wife’s counsel that it would be unsafe to accept Ms F’s evidence as to the possibility of the wife’s signature being forged on the opt-in statement.
That view is bolstered given the wife’s evidence during cross-examination in which she denied the allegation that the signature on Exhibit R-3 was not hers but rather the product of photocopying or tracing. The wife was forthright and direct in her evidence regarding the circumstances in which the document was signed. She conceded that she could not recall why the document had been dated the preceding day. The wife’s evidence regarding the circumstances of the execution of the document appeared genuine and was consistent with the account given by her former lawyer during her oral evidence.
The conduct of the parties in the period leading up to the hearing on 6 July 2016 supports the view that it was the wife’s intention to opt-in to the jurisdiction of this Court. She had already sworn an affidavit evidencing that intention. It was only as a result of a requisition received from the Court that she became aware of the necessity to execute additional documents. Exhibits R-2 and R-3 are those documents.
The proposition put by the husband that there had been some conspiracy between the wife and her former lawyer regarding the execution of the opt-in statement is inconsistent with the actions of the wife and the submissions made to the Court on behalf of the wife on the day she and her former lawyer say the document was executed. Having regard to those matters, I accept the wife’s evidence regarding her execution of Exhibit R-3.
The wife’s former lawyer was also cross-examined as to the provenance of Exhibit R-3. Ms JJ’s oral evidence contradicted that contained in her affidavit to which I have earlier referred. Whilst Ms JJ deposed that the opt-in statement had been executed by the wife on the day prior to the hearing, during her oral evidence she confirmed that the statement had been prepared at her office and that an unsigned copy of the document was executed at Court on 6 July 2016. Ms JJ stated that she had pre-dated the document to be signed by her client. Accordingly, the document bears the date 5 July 2016.
When asked to explain why the wife’s signatures on three different documents appeared identical, Ms JJ could offer no explanation. Ms JJ conceded that she did not file the opt-in statements with the wife’s application in compliance with the Rules.
Counsel for the husband was critical of the role played by the wife’s former lawyer in the matter. In particular, he was critical of that lawyer in circumstances where there were clear inaccuracies in the affidavit filed on her behalf which were not corrected by her during her evidence-in-chief. He was also critical of her evidence as to the circumstances in which the opt-in statement was created and executed. There is much force in those criticisms. The affidavit of Ms JJ was misleading and the matters contained therein were not corrected by her during her evidence-in-chief. It was only during cross-examination that she sought to clarify the circumstances in which the opt-in documents were signed by the wife. As a result, I found aspects of her evidence to be most unsatisfactory.
Nonetheless, in circumstances where the evidence of the wife is clear as to the execution of the document and that evidence is consistent with the oral evidence of Ms JJ as to when the document was signed, I accept that the opt-in statement was signed by the wife at Court on 6 July 2016.
Having regard to the above findings, I am satisfied that for the purposes of sub-item 86A(5):-
(a)Both the husband and the wife have made a choice in writing to opt-in to have their property dispute determined pursuant to the provisions of the Act;
(b)Both the husband and the wife were provided before signing the opt-in statement with:-
(i)Independent legal advice from their lawyers as to the advantages and disadvantages at the time the advice was provided; and
(ii)A signed statement by their lawyers stating that such advice was given to them.
(c)The opt-in statements signed by the parties, together with the statements of independent legal advice signed by their lawyers were executed prior to the wife filing her Initiating Application on 11 August 2016.
It was submitted on behalf of the husband that in order to comply with the requirements of sub-item 86A(5) it is necessary that one document be executed by both parties rather than separate documents by each of the parties. I do not accept that the provisions of sub-item 86A(5) impose such requirement on the parties.
In addition, it was submitted on behalf of the husband that at the time he executed the “opt-in” statement the wife had failed to disclose her interest in a property in Town U. As a result of that non-disclosure, it was contended that the husband could not have been given complete advice as to the advantages and disadvantages of opting-in to the jurisdiction. I do not accept that submission. In my view, sub-item 86A(5)(b) ensures that parties are informed as to the advantages and disadvantages of invoking the Court’s jurisdiction. Such information would likely include the powers of the Court in relation to the dispute and as to the relief available to the parties if the jurisdiction is invoked, as compared to pursuing their rights in other forums. Whether or not there was non-disclosure by the wife at the time of opting-in in my view does not diminish or alter the information given to the husband in relation to both the advantages and disadvantages of opting in.
It was also submitted that in circumstances where there has been failure by the wife to comply with the Rules as to the filing of the opt-in statements, the Court’s jurisdiction has not been properly invoked.
Rule 1.12 of the Rules provides that the Court may dispense with compliance with any of the Rules at any time before or after the occasion for compliance arises. In determining when to exercise that discretion, r 1.12(3) provides:-
In considering whether to make an order under this rule, the court may consider:-
(a)the main purpose of these Rules (see rule 1.04);
(b) the administration of justice;
(c)whether the application has been promptly made;
(d)whether non‑compliance was intentional; and
(e)the effect that granting relief would have on each party and parties to other cases in the court.
It was submitted on behalf of the wife and I accept that there are no time limits imposed by the Amending Act as to when the opt-in statements are to be executed. Further, there is no requirement pursuant to those provisions that such opt-in statement be filed at Court. It was submitted that the rules requiring the filing of the opt-in statement with the Initiating Application ought be dispensed with in circumstances where:-
·The final hearing of this matter was concluded in November 2017 and at the time of hearing the matter proceeded on the assumption that such opt-in statements had been filed. To insist upon compliance with r 2.02 would result in the costs of the parties incurred in the conduct of the proceedings to trial being thrown away.
·The administration of justice would be served by providing dispensation so as to enable parties who had exercised a choice to opt-in to the jurisdiction of the Court to finalise the proceedings.
·Upon the issue being raised by the Court as to the parties’ compliance with the Amendment Act, it was submitted that the wife had acted promptly in locating her former solicitor in an endeavour to locate the documents prepared and signed in accordance with sub-item 86A(5).
·There is no evidence that the non-compliance with the Rules was intentional. It was submitted and I accept that the failure to file those documents was an oversight as it would seem that neither the husband nor the wife were aware of the obligations imposed by r 2.02.
·In circumstances where both parties sought to invoke the Court’s jurisdiction, there would be a significant prejudice to the wife if dispensation of compliance with the Rules was not granted.
In support of those submissions, counsel for the wife referred to the observations of McHugh J in Gallo v Dawson (1990) 93 ALR 479 at 480 where his Honour found that:-
The object of the rule is to ensure that those Rules which fix times for doing acts do not become instruments of injustice.
Having regard to the clear intention of the parties at the time of filing the application for consent orders, coupled with the signed opt-in statements and statements of their legal practitioners and the submissions made on behalf of the husband at the hearing before Macmillan J on 6 July 2016, where he confirmed that the parties intended to opt-in to the Court’s jurisdiction, I am satisfied that to require compliance with the Rules as to the filing of the opt-in statements would be to elevate the Rules to the status of a legislative requirement and therefore enable them to become ‘instruments of injustice’. Accordingly, I am satisfied that the obligations imposed by r 2.02 ought be dispensed with.
Having regard to the above matters, I am satisfied that the parties have invoked the jurisdiction of the Court pursuant to item 86A of the Amendment Act. That being the case, I now propose to determine the parties’ outstanding property applications.

The hearing

The matter was allocated to my docket and I made trial directions on 18 August 2017 fixing the matter for hearing to commence on 30 October 2017 as a two-day matter.
The trial commenced on 30 October 2017. At the commencement of the hearing both parties were represented by counsel. Counsel for the wife opened his client’s case, the wife gave her evidence in chief and cross-examination of her was commenced.
On 31 October 2017, being the second day of the hearing the husband did not attend Court. Counsel for the husband informed the Court that his instructing solicitors had been contacted by the husband’s sister who informed him that the husband was unwell and had attended hospital that morning. In the circumstances, I made the following orders:-
1.That this matter be adjourned part-heard to 2 November 2017 at 11.00am before the Honourable Justice Johns.
2.That the respondent provide at the adjourned hearing a medical report setting out the reasons and basis for the non-attendance of the respondent at Court this day including as to any symptoms as presented, diagnosis, treatment given and prognosis and such report, if practicable and which is preferred by this Court, be annexed to an affidavit of the treating medical practitioner.
3.That the costs of the applicant of this day being thrown away be fixed in the sum of $5,400.00 and any question of payment thereof be reserved to the adjourned date.
…
The husband again did not appear at the hearing on the adjourned date, 2 November 2017. That day, his solicitor was granted leave to file two affidavits, being one from his solicitor Mr HH (Exhibit A-3) and the other from another solicitor working on the husband’s file, Ms HH (Exhibit A-4). Annexed to Ms HH’s affidavit are a number of documents in relation to the husband’s presentation at hospital on 31 October 2017.
In Mr HH’s affidavit he deposed that he spoke with the husband briefly on the morning of 2 November 2017. At paragraph 12 of his affidavit he deposed as follows:-
This morning…I telephoned the Respondent and spoke to him briefly wherein he told me he cannot come to court today he was under medication and what he was taking was “knocking him out” he was incoherent and groggy.
Annexed to Mr HH’s affidavit was a medical certificate from the husband’s general medical practitioner, Dr E dated 31 October 2017. That certificate states:-
This is to certify that, [the husband]…is extremely anxious/stressed and is unable to attend court from 31/10/17 to 14/11/17.
That day I made the following orders:-
1. That this matter be adjourned part-heard to 10.00am on 27 November 2017 before Her Honour Justice Johns.
2.That the respondent be in personal attendance at the adjourned hearing.
3.That in the event of the respondent’s failure to so attend, the applicant be at liberty to apply to have the respondent’s Response to Initiating Application struck-out and proceed on an undefended basis.
4.That the costs of the applicant of this day being thrown away be fixed in the sum of $5,000 and any question of payment thereof be reserved to the adjourned date.
…
The matter was listed for mention on 21 November 2017 as a result of notice received from the husband’s solicitor that he sought leave to cease acting for the husband. The husband’s solicitor, Mr HH swore and filed an affidavit on 17 November 2017 (Exhibit A-5) in which he deposed as to his attempts to communicate with the husband and obtain his instructions. At paragraph 10 of that affidavit Mr HH deposed that:-
It is apparent given the circumstances that my firm and Counsel no longer hold instructions to act for the Respondent. I have made various attempts to get in contact with the Respondent to obtain instructions and confirmation from him as to his position, however this has been to no avail.
At the mention hearing on 21 November 2017 counsel and solicitor for the husband appeared. The husband also attended the hearing. The husband confirmed to the Court that he did not wish to retain his solicitor and counsel who had appeared on his behalf to date. I therefore granted leave for the husband’s counsel and solicitor to withdraw. The husband informed the Court that he had arranged to confer with other lawyers.
The hearing resumed on 27 November 2017. Notwithstanding his indication at the earlier mention hearing that he would retain new lawyers, the husband represented himself for the balance of the hearing.
Accordingly, prior to the resumption of the hearing that day, in accordance with the guidelines in Re F: Litigants in person guidelines (2001) FLC 93-072 I informed the husband as to the Court process, including the manner in which the trial would proceed, the order of calling witnesses and the right to cross-examine witnesses. The husband’s former lawyers had filed a Case Outline document and prepared his trial affidavit material. The husband had also had the opportunity to observe the wife giving evidence in chief and his former counsel cross-examining her on the first day of hearing.

Material relied upon

The wife relied on the following material:-
·    Amended Initiating Application filed 7 August 2017;
·    Affidavit of the wife filed 4 October 2017;
·    Affidavit of the wife filed 30 October 2017;
·    Affidavit of Dr K filed 18 October 2017; and
·    Financial Statement filed 18 October 2017.
The husband relied upon the following material:-
·    Response to Initiating Application filed 8 August 2017;
·    Amended Affidavit of the husband filed 18 October 2017;
·    Financial Statement filed 13 October 2017; and
·    Affidavit of Ms L filed 13 October 2017.

The parties’ proposals

The parties ultimately agreed that there were three assets to be included in the pool of assets available for division, being the property at Street V, Town U (“the Street V, Town U property”), the property at Street S, Suburb T (“the Street S, Suburb T property”) and the balance of the sale proceeds of the property at Street H, Suburb J (“the Street H, Suburb J property”).
The parties agreed that the wife was to retain her interest in the Street V, Town U property and the husband was to retain the whole of the Street S, Suburb T property. Therefore the main issue in dispute was how the Street H, Suburb J sale proceeds were to be divided.
At the commencement of the hearing, the wife sought to retain the whole of the balance of the Street H, Suburb J sale proceeds held on trust, being approximately $310,823 of which sum the amount owed by the husband in child support arrears of $15,304.47[3] is included. Hence, she seeks a payment of approximately $295,000 from the proceeds of sale and the discharge of child support arrears.
[3] Exhibit A-6.
On the first day of trial, when represented by counsel, the husband’s position was that the proceeds of sale of the Street H, Suburb J property be divided equally and therefore, that the wife be paid the sum of approximately $155,412.
However, the husband’s position altered upon him commencing to represent himself. The husband opened his case on the fourth day of the hearing and confirmed that he sought orders that:-
·    He be paid the sum of $250,000 from the proceeds of sale of the Street H, Suburb J property;
·    The wife receive the balance of the sale proceeds, being approximately $61,000;
·    That the wife do all acts and things necessary to transfer the Street S, Suburb T property to the husband;
·    That the husband retain rents received from the Street S, Suburb T property and that the husband and the wife be responsible for any repairs to that property;
·    Each party retain their superannuation entitlements; and
·    The wife pay any costs of the husband arising from her non-disclosure of the Street V, Town U property.
During closing submissions the husband’s position shifted further and he proposed that the wife receive $70,000 from the Street H, Suburb J property sale proceeds and that she retain the Street V, Town U property; an adjustment in those terms means that the wife would receive approximately 26 per centum of the agreed asset pool.
As to the arrears of child support, the husband conceded during cross-examination and his closing submissions that the arrears of $15,304.47 be paid from the sale proceeds of the Street H, Suburb J property, leaving $295,519.34 to be divided between the parties.

The evidence

In determining the matter, the relevant standard of proof is the balance of probabilities. Section 140 of the Evidence Act 1995 (Cth) provides that, without limiting the matters the Court may take into account in applying that standard of proof, the Court must take into account:-
(a)      The nature of the cause of action or defence;
(b)      The nature of the subject matter of the proceedings; and
(c)      The gravity of the matters alleged.
I have read all documents upon which the parties have relied and the exhibits tendered during the hearing. I have also had the benefit of observing the appearance and demeanour of the witnesses when giving their evidence in Court.
In making my findings, I have given careful consideration to all of the evidence, the nature of the proceedings, the seriousness of the allegations made and the consequences that flow from those findings.
Both the husband and the wife carry the burden of proving different aspects of their case. Each party gave evidence and was cross-examined.

Legal principles

The parties’ competing property applications are to be determined in accordance with the provisions of Part VIIIAB of the Act. The High Court considered the approach to be adopted in the determination of proceedings pursuant to s 79 of the Act in the decision of Stanford & Stanford (2012) 247 CLR 108. Although the Court there was dealing with a property settlement involving a married couple, the principles established in that case apply with equal measure to a de facto couple (Gao & Wang (2016) FLC 93-735 at [19]).
At page 121 of Stanford the High Court stated that “the power to make a property settlement order must be exercised ‘in accordance with legal principles, including the principles which the Act itself lays down’”.
Section 90SM(1) of the Act provides that:-
In property settlement proceedings after the breakdown of a de facto relationship, the court may make such order as it considers appropriate:
(a)   in the case of proceedings with respect to the property of the parties to the de facto relationship or either of them—altering the interests of the parties to the de facto relationship in the property; or
(b)   in the case of proceedings with respect to the vested bankruptcy property in relation to a bankrupt party to the de facto relationship—altering the interests of the bankruptcy trustee in the vested bankruptcy property;
including:
(c)   an order for a settlement of property in substitution for any interest in the property; and
(d)   an order requiring:
(i)either or both of the parties to the de facto relationship; or
(ii)the relevant bankruptcy trustee (if any);
to make, for the benefit of either or both of the parties to the de facto relationship or a child of the de facto relationship, such settlement or transfer of property as the court determines.
Section 90SM(3) relevantly provides that:-
The court must not make an order under this section unless it is satisfied that, in all the circumstances, it is just and equitable to make the order.
Section 90SM(4) prescribes the matters the Court must take into account in determining what, if any order is to be made pursuant to the provisions.
Having regard to the principles enunciated in Stanford and the provisions of s 90SM of the Act, the Court in determining the parties’ competing applications is required to:-
· Identify the parties’ respective legal and equitable interests in property;
· Determine whether in accordance with s 90SM(3) it is just and equitable to make a property settlement order having regard to the parties’ existing interests;
· Determine all relevant contributions of each of the parties;
· Identify and weigh against each other the matters set out in s 90SM(4)(a) to (c) inclusive of the Act;
· Consider the matters contained in ss 90SM(d) to (g) inclusive of the Act and make a determination as to what, if any alterations should be made to the entitlements of the parties earlier assessed on account of their contributions, particularly having regard to the provisions of s 90SF(3) of the Act.

The issues

The issues raised by the applications requiring determination include:-
·    The duration of the relationship;
·    The weight to be attached to the contributions made by the husband at the commencement of the relationship, being his equity in the Street H, Suburb J property and the Business R;
·    Whether the wife made contributions to the Business R conducted by the husband, and if so the weight to be attached to those contributions;
·    Whether the wife made contributions to the improvements to the property registered in the husband’s name in Street H, Suburb J and if so, the weight to be attached to those contributions;
·    The weight to be attached to the wife’s post-separation contributions as primary caregiver to the parties’ child made in circumstances where the husband has paid nominal child support and spent little time with the child;
·    Whether the husband should be held to account for the increase in the mortgage liability secured against the title to the Street H, Suburb J property, which was $162,000 at the date of separation and increased to approximately $320,000 at its date of sale, it being the wife’s contention that that liability increased as a result of the husband’s gambling.

The parties

The wife is aged 54 and is employed part-time as a Health Care Worker. At the time of hearing the wife was on unpaid leave due to health issues.
The husband is aged 55 years and is unemployed.
There is one child of the relationship, X aged 16. X lives with the wife. She has not spent time with the husband since approximately 2014.

The duration of the relationship

The parties have differing views as to both the date upon which the relationship commenced and its duration. The wife asserts that the parties met in 1997 and that their relationship commenced shortly thereafter. She contends that there was a short period of separation between September and November 1997.
Notwithstanding the matters deposed to in his trial affidavit filed 18 October 2017, it is conceded in the husband’s Case Outline document filed 26 October 2017 that the relationship commenced in 1998, albeit that there were periods of separation.
It is common ground that the parties were engaged to be married in 2002 and that they commenced cohabitation in 2003.
The wife asserts that the parties’ commenced cohabitation in 2003 when they moved into the Street H, Suburb J property whilst the husband contends that they commenced cohabitation in 2003. At the time of cohabitation, the wife was pregnant with the parties’ child.
X was born in 2003. The wife gave evidence, which I accept, as to the renovations to the Street H, Suburb J property undertaken by the parties in anticipation of their cohabitation and X’s birth. Whilst the husband sought to challenge the extent of the wife’s contributions to those renovations, he did not dispute that they occurred. The wife’s evidence regarding the preparation of the property in anticipation of the parties’ cohabitation and the birth of their child, was detailed and clear. Both in her trial affidavit and oral evidence the wife provided detail as to the nature and extent of the renovations, including particulars as to selection of paint colour. It was evident that the wife had a clear and detailed recollection of the events leading up to the parties’ cohabitation. Accordingly, I prefer her evidence as to the date the parties’ commenced cohabitation.
Notwithstanding the evidence contained in his trial affidavit, during his oral evidence the husband stated that separation occurred in February 2004 and further that the relationship endured for a period of only eight months.
On 22 February 2016 the parties filed an Application for Consent Orders (Exhibit R-4). That application is signed by the husband and dated 10 January 2016 and contains a certificate from his lawyer confirming that she had provided him with independent legal advice. At Part B of the application the parties state that they began living together in 2003 and that they finally separated in August 2005.
During cross-examination the husband was questioned about the duration of the relationship and the statements made in the Application for Consent Orders. When the contents of that document were put to the husband, he alleged that his lawyers made him sign the document and he trusted them. The husband’s attempt to blame his lawyer for the inconsistency between the documents signed by him and his current assertions was unimpressive and did him no credit.
The husband asserts that separation occurred when the wife left the Street H, Suburb J property in or about September 2004. Nonetheless, in his trial affidavit filed 16 October 2017 he deposes that the parties’ holiday in Country W in 2005 was undertaken in order to repair the parties’ relationship.
The wife deposes that she and X vacated the Street H, Suburb J property in January 2005 and moved in with her parents. Although living separately she deposes that she continued to attend the home two to three times per week. In about 2005 the husband travelled to the United States of America and Country W.
It is common ground that in 2005 the parties met in Country W and travelled together. The wife deposes that the parties travelled for four weeks and that they separated on a final basis in Country Y in August 2005. The husband returned to Australia in 2005 and the wife and X returned to Australia in 2006.
Having regard to the statements made by the parties in the Application for Consent Orders as to the date of separation and the husband’s concession in his trial affidavit as to the purpose of the Country Y vacation, I am satisfied that final separation occurred during that vacation in August 2005.Having regard to my earlier findings I am satisfied that the parties commenced their relationship in or about 1997/1998 and separated in August 2005, and that they cohabited between 2003 and August 2005, a period of approximately 2 years.

The asset pool

At the commencement of the hearing, an agreed balance sheet was tendered (Exhibit A-7). That balance sheet identified the parties’ property interests as follows:-

Ownership			Description			Wife/ de facto partners value		Husband/ de facto partners value
ASSETS
Main Assets
1	Joint	Proceeds of sale of Street H, Suburb J (held in trust by HH Lawyers)			$315,913		$315,913
2	Joint	Street S, Suburb T (pursuant to report prepared by Z dated 3 April 2017) (unencumbered)			$605,000		$605,000
3	Ms Leda & Ms G (as tenants in common)	Street V, Town U (unencumbered) (AA valuation in progress) (Ms Leda’s half share only)			$232,500		$232,500
Total						$1,153,413		$1,153,413
Other Assets
4	Ms Leda	Funds in bank accounts in Ms Leda’s name (excluding funds received from part property settlement)			$ Nominal		$ Nominal
5	Mr Kouros	Funds in bank accounts in Mr Kouros’ name			$ NK		$ 2,000
6	Ms Leda	Ms Leda’s shares in BB; CC; and M Shares			$ 9,010		$ 9,010
7	Mr Kouros	N Pty Ltd – plant & equipment			$ NK		$ E 4,000
8	Ms Leda	Motor Vehicle O			$E 9,500		$E 9,500
9	Mr Kouros	Motor Vehicle O			$ NK		$E 2,000
10	Ms Leda	Household contents			$ Nominal		$ NK
11	Mr Kouros	Household contents			$ Nominal		$ 2,000
Total					$ 18,510		$ 28,510
Overall Total					$1,171,923		$1,181,923
ADDBACKS
12	Ms Leda	Ms Leda’s part property settlement			$ 235,000		$ 235,000
13	Mr Kouros	Mr Kouros’ part property settlement			$ 235,000		$ 232,992
Total					$470,000		$468,492
LIABILITIES
De Facto Wife’s
14	Ms Leda	Credit Card – ANZ Visa			$ 2,177		$ 1,204
15	Ms Leda	School fees (overdue)			$ 5,335		$ 5,335
De Facto Husband’s
16	Mr Kouros	Credit Card – MasterCard Go			$ 4,125		$ 4,125
17	Mr Kouros	Loans from parents			$ NK		$ 35,000
18	Mr Kouros	Loans from Mr P			$ NK		$ 50,000
19	Mr Kouros	Rates for Street S, Suburb T property			$ NK		$ 1,600
20	Mr Kouros	Infringements			$ NK		$ 20, 342
SUPERANNUATION
Member		Name of Fund		Type of Interest	Wife/ de facto partners value		Husband/ de facto partners value
21	Ms Leda	Super Fund DD		Accumulation	$ 43,102		$ 43,102
22	Mr Kouros	Super Fund Q		Accumulation	$ 63,134		$ 63,133
Total		$ 106,236		$ 106,235

Exhibit A-7 clearly identifies the parties’ principal assets comprising the Street S, Suburb T property, the Street V, Town U property and the proceeds of sale of the Suburb J property. Ultimately the parties agreed that they should be the assets comprising the pool available for division. That position was adopted in circumstances where the parties had separated some 12 years earlier and the other interests referred to in Exhibit A-7 were either of nominal value or related to assets acquired or liabilities incurred after the parties’ separation.
Given that a period of approximately 12 years had elapsed since the parties’ separation, in my view that was a sensible and pragmatic approach. The reality is that the parties’ assets comprising of savings, motor vehicles and chattels and their liabilities had altered and changed with the passage of time; attempting to formulate an asset pool including such items in circumstances where it was common ground that each party had conducted their financial affairs independently of the other since separation was likely to extend the duration of the hearing with little benefit to either party. Accordingly, by the time of closing submissions, it was common ground between the parties that the pool of assets available for division comprised of:-
·    Proceeds of sale of the Street H, Suburb J property             $310,823
·    The Street S, Suburb T property  $605,000
·    The Street V, Town U property  $232,500
By the conclusion of the final hearing the parties had agreed that certain expenses relating to the husband’s accountant and the builders undertaking repairs to the Street S, Suburb T property be paid from the proceeds of sale of the Street H, Suburb J property. As a consequence, the balance of those sale proceeds had reduced from the sum of $315,913 as contained in Exhibit A-7 to $310,823.81. Hence, the agreed pool of assets available for division totalled approximately $1,148,000.
Neither party sought an adjustment of their respective superannuation interests. Further, neither party sought to add-back part-property settlements received in calculating the adjustment of the parties’ interests.

Section 90SM(3)

Both parties seek orders for adjustment of property pursuant to s 90SM of the Act. They own a jointly held property, being the Street S, Suburb T property and each seeks adjustment of their property interests. There was no challenge to the proposition that it is just and equitable to make orders for property settlement. Having regard to those matters, in circumstances where the parties have shared a relationship, have acquired property together during that relationship and there is a child of the relationship and where it is agreed by them that they will no longer have the joint use and enjoyment of their property, I am satisfied that it is just and equitable to make orders for adjustment of their interests.

Initial contributions

At the commencement of the parties’ cohabitation the husband held:-
·    The Street H, Suburb J property, which had been purchased by him in 1998 for the sum of $137,000. The husband borrowed the sum of $120,000 from KK Bank in order to facilitate the purchase of the Street H, Suburb J property and it was registered in the husband’s sole name. Hence, at the time of its acquisition, the husband’s equity in the Street H, Suburb J property was approximately $17,000.00.
·    The Business R which he had purchased in 1989. There is no evidence as to the value of that business at the commencement of the parties’ cohabitation;
·    Shares of nominal value;
·    A Motor Vehicle O; and
·    Superannuation valued at approximately $30,000.
The wife held the following interests at the commencement of cohabitation:-
·    Savings of approximately $25,000;
·    Shares valued at approximately $15,000;
·    A motor vehicle; and
·    Superannuation valued at approximately $20,000.
It is contended by the husband that his initial contributions were significantly greater than those of the wife. That contention was in part, founded on his assertion that the husband’s parents had made direct financial contributions to the acquisition of the Street H, Suburb J property. The husband did not press that allegation during the hearing and in his amended trial affidavit filed 16 October 2017, he confirmed that in fact he had been in error when he had previously asserted that his parents had contributed to the acquisition of the Street H, Suburb J property.
There is no evidence as to the equity held by the husband in the Street H, Suburb J property at the time that the parties commenced cohabitation in 2003. Nonetheless, during his closing submission, the husband conceded that at the time the relationship commenced the wife had shares valued at approximately $25,000 whilst the equity held by him in the Street H, Suburb J property was approximately $17,000.

It was conceded on behalf of the wife, quite properly in my view, that the Street H, Suburb J property did provide the parties with a springboard which enabled them to acquire the Street S, Suburb T property during the relationship. To that extent, I am satisfied that it is appropriate that a modest adjustment be made in favour of the husband to take into account the impact of that contribution in what was a short period of cohabitation.

Contributions during the relationship

It is common ground that in 2004 the parties purchased the Street S, Suburb T property, from which the husband conducted the Business R. The title to the Street S, Suburb T property was registered in the parties’ joint names. The Street S, Suburb T property was purchased for the sum of $260,000 and the husband borrowed the sum of $230,000 in order to finance the purchase, that loan secured against the title to the Street H, Suburb J property.
The wife concedes that she did not make any direct financial contribution to the purchase of the Street S, Suburb T property.
In 2004 the husband sold the Business R for the sum of $220,000, of which approximately $110,000 was applied to the reduction of the mortgage on the Street H, Suburb J property. The husband deposes that the balance of the sale proceeds were applied to the discharge of business loans and repayment of monies advanced by his mother. There was no challenge to that evidence.
Upon the sale of the Business R the husband was not engaged in employment for the balance of the relationship.
The parties had the benefit of rent from the Street S, Suburb T property which was applied towards payment of the mortgage secured over the title to the Street H, Suburb J property.
The husband’s position throughout the trial and confirmed during his oral evidence was that the wife did not contribute anything financially during the course of the relationship. The husband also refuted the wife’s contention that she had made non-financial contributions to the acquisition, conservation or improvement of the parties’ property.
For her part, the wife contends that she supported and assisted the husband in the renovations initially carried out to the Street H, Suburb J property in 1999 as well as the improvements effected to the property prior to the commencement of cohabitation in 2003.
The wife concedes that the husband was responsible for payment of the mortgage and other costs associated with the Street H, Suburb J property, including insurances, utilities and improvements.
As to the contributions made by her upon the purchase of the Street H, Suburb J property, she deposes at paragraph 84 of her trial affidavit to assisting the husband in preparation of the property to be tenanted. The wife deposes that the contributions made by her included removing stains from the kitchen ceiling, preparing walls in the bedrooms and living rooms for sanding and painting, sanding cornices in bedrooms and living areas, sanding window panes, painting, cleaning and preparing floor boards for sanding and polishing. During cross-examination by the husband, the wife expanded on that evidence, confirming that they spent many weekends renovating the property. The wife’s evidence regarding those contributions was detailed and cogent. I accept that evidence.
As to contributions made by her in anticipation of the commencement of cohabitation, the wife again gave detailed evidence as to her efforts, which are set out at paragraph 86 of her trial affidavit. Those contributions included assisting with the design and measurement for renovations to the kitchen and laundry, selecting and paying for tiles for the kitchen, selecting paint colours, designing built-in wardrobes and cleaning, including removing plasterboard, wood and debris. Again the wife expanded on that evidence during cross-examination, confirming that she also assisted in knocking down a wall in the kitchen area and with painting and cleaning.
The husband denied that the wife had made any contribution to the Street H, Suburb J property. This was consistent with his position throughout the case that the wife had contributed nothing to the relationship. The husband throughout the proceedings was unwilling to make concessions as to any form of contribution by the wife to either the Street H, Suburb J property or the Business R.
The husband also relied on the evidence of his sister, Ms L as contained in her affidavit filed 13 October 2017. That evidence was strikingly consistent with that of the husband insofar as the wife was said to have “never” contributed, whether in the husband’s business or in the renovations to the Street H, Suburb J property. Ms L was critical of the wife’s assertions as to her contributions in both spheres. Ms L was not required for cross-examination.
As observed earlier, the wife was clear, detailed and cogent in her evidence regarding the contributions made by her to the Street H, Suburb J property. Significantly, and unlike the husband and his sister, she also made concessions where appropriate as to the husband’s contributions, both financial and non-financial. Having regard to all of those matters, I prefer the evidence of the wife as to her contributions to the Street H, Suburb J property.
The husband owned a business at the commencement of the parties’ relationship. He continued to conduct that business until 2004.
The wife deposes that the husband worked long hours in the Business R. She deposes that she assisted the husband in the business from the commencement of their relationship until its sale in 2004. The wife deposes that she would regularly attend the business to assist with cleaning and preparation for the next day’s trade. This was in addition to her employment as a health care worker.
The wife’s evidence was that the husband had employees who finished work each day at approximately 3.00pm. Thereafter the husband was left to clean and prepare for the next day’s trade. She deposes that often the husband did not finish that work until between 7.00pm and 8.00pm. At paragraph 79 of her trial affidavit, the wife deposes as to the tasks undertaken by her at the business, including sweeping and mopping floors, wiping tables, chairs and counter areas, washing up leftover dishes, taking out rubbish, re-stocking the drinks fridges and tidying food displays.
The husband’s sister, Ms L deposed that she also worked in the business albeit at times different to those of the wife. For example, Ms L deposed that she ceased work in the business each day at 3.00pm. Given that she was not present at the times the wife states she attended the business to assist the husband, little weight can attach to Ms L’s evidence regarding her observations of the wife’s contributions in the business.
Again, the husband and his sister denied any and all contributions made by the wife to the business. The husband challenged the wife’s contributions during cross-examination. The wife’s oral evidence was consistent with that set out in her trial affidavit. Again, her evidence was detailed as to the nature and type of contributions made by her to the business. Her evidence was clear and plausible. I accept the wife’s evidence regarding those contributions.
As noted above, the wife brought savings of approximately $25,000 into the relationship. The husband asserted that the wife did not contribute that sum to the relationship. That assertion was denied by the wife.
The wife was cross-examined in relation to the application of her savings. During her oral evidence, the wife confirmed that part of her savings was applied towards the renovation and furnishing of the nursery, towards medical expenses associated with her confinement and the child’s birth, clothing for the parties and the child. The wife produced a bundle of her Visa statements for the period 2003 to 2005 (Exhibit A-8). Those Visa statements confirmed that during that period, the wife met a range of expenses for the family including health insurance payments, payments for her obstetrician, purchase of furnishings for the child’s nursery and payments to a restaurant in relation to the child’s christening. During her oral evidence, the wife confirmed that she was responsible for payment of expenses on that credit card from her savings. I accept that evidence.
The evidence of both parties confirms that during the course of the cohabitation, theirs was a traditional relationship. The husband was the principal breadwinner responsible for generating income to support the family. I am satisfied that he worked to the best of his abilities in the café business to support the family.
Notwithstanding his assertions that the wife made no contribution to the business, I am satisfied having regard to her evidence that she provided support and assistance to him in the operation of the business.
I am also satisfied that the husband was principally responsible for meeting all expenses associated with the renovation of the Street H, Suburb J property. Again, having regard to the evidence of the wife which I accept, I am satisfied that she provided a supporting role, assisting with the cleaning and preparation for those renovations. I am also satisfied that the wife contributed her savings for the benefit of the family, applying them towards expenses related to the child’s birth, including medical expenses, purchase of furnishings for the child as well as other incidental expenses.
The wife ceased employment in anticipation of the child’s birth. Thereafter she was principally responsible for homemaker and parent duties. The wife suffered post-natal depression following the child’s birth and she and the child were hospitalised for a short period. The husband continued to work long hours in the business following the child’s birth. As a consequence, I am satisfied that the wife made greater contributions as a homemaker and parent.
Having regard to all of the above factors, I am satisfied that each party contributed to the best of their ability during the course of the relationship. I am satisfied that during the period of cohabitation, the husband made greater direct financial contributions. I am also satisfied that the wife made contributions to the best of her ability in supporting and assisting the husband in the operation of his business and in relation to the renovation of the Street H, Suburb J property. As to the homemaker and parent contributions, I am satisfied that during the period of cohabitation the wife made greater contributions in that sphere.
In the context of what is a short period of cohabitation, I am satisfied having regard to the nature and extent of the parties’ respective contributions that greater weight must be afforded to the husband’s contributions to reflect his initial contribution of the Street H, Suburb J property. But for that contribution, I am satisfied that it is unlikely that the parties would have been in a position to purchase the Street S, Suburb T property during their cohabitation.

Post separation contributions

Following the parties’ separation the husband continued to live in the Street H, Suburb J property. He also retained all rental monies received from the tenants in the Street S, Suburb T property.
The wife and X lived with the wife’s parents in Suburb EE.
In 2006 the husband purchased a business N Pty Ltd. He operated that business until December 2016.

The Street V, Town U property

In about December 2007, the wife and X commenced living in a property owned by the wife’s parents, the Street V, Town U property. The wife and X continue to reside at that property.
In 2010 the wife’s father died. The wife inherited from her father’s estate a one-half interest in the Street V, Town U property, the other half being held by her mother with each holding their half interest as tenants in common. The wife’s half interest in the Street V, Town U property was transferred to her in 2014.
The wife did not disclose her interest in the Street V, Town U property until 30 October 2017, being the first day of the hearing. That day with leave of the Court, the wife swore and filed an affidavit in which she disclosed her interest in the property. Until that time, her interest in that property was not disclosed in any material filed on her behalf.
The wife’s evidence was that at the time of her father’s death, she assumed that her mother became sole proprietor of the Street V, Town U property. The wife stated that she did not become aware of the existence of her father’s will until 2014. It was then she learnt that she had inherited her father’s one-half interest in the property. The wife stated that it was her view that although she had a legal entitlement to a half-interest in the property, she still regarded the property as belonging to her mother.
The wife confirmed that she did not disclose her interest in the Street V, Town U property in the Application for Consent Orders filed in 2016 or in the financial statements sworn and filed by her during the proceedings. She conceded that she had not told the truth in respect of those matters.
The husband was highly critical of the wife’s conduct in relation to the non-disclosure. Such criticism of the wife is warranted. It was only at the door of the Court that the wife did acknowledge her interest in the property. As a result of the manner in which he conducted his case, it appeared the husband sought to obtain some punishment or retribution against the wife for her non-disclosure. However, in my view, there is no basis for such an approach. There is no suggestion that there has been other non-disclosure by the wife. The wife’s interest in the property is a matter to be taken into account in the overall adjustment of the parties’ interests. The wife’s non-disclosure in relation to that interest may be a matter relevant to the question of costs.

Sale of the Street H, Suburb J property

On 13 June 2016 the husband sold the Street H, Suburb J property without prior notice to the wife. Settlement occurred on 14 July 2016. The net proceeds of sale are held on trust by the husband’s lawyers. From the sale proceeds the parties have each received the sum of $235,000 by way of part property settlement.
As at 17 November 2017 the balance of the proceeds of sale from the Street H, Suburb J property held on trust was $310,823.81 (“Street H, Suburb J sale proceeds”).[4]
[4] Affidavit of George Livaditis filed 17 November 2017, para 15.
The husband denied the allegation that he had not disclosed to the wife the fact of the sale of the Street H, Suburb J property. The wife’s evidence was that she did not learn of the sale of that property until she made enquiries of the selling agent. During his oral evidence, the husband confirmed his view that he does not consider that the wife has any entitlements to the sale proceeds from Street H, Suburb J as he had worked hard for that property. Whilst he denied the allegation that he had not disclosed the fact of the sale, he conceded that he received the whole of the deposit monies from the selling agent. During his oral evidence the husband rejected the proposition that the wife had any entitlement to a share of the deposit monies, asserting that it was “my house”.
Having regard to the husband’s attitude towards the wife’s entitlements to the Street H, Suburb J property, coupled with the evidence of the wife as to how she learnt of its sale, I am satisfied that the husband did not disclose the fact of the sale of that property until after the event.

The husband’s gambling

The wife alleges that the husband drew down on the loans secured against the title to the Street H, Suburb J property after separation in order to fund his gambling addiction. At the time of separation in 2005, the balance due on the mortgage liability was approximately $162,000. At settlement of the sale of the Street H, Suburb J property in 2016, the balance outstanding with respect to the mortgage was approximately $320,000.
In January 2016, the husband re-financed the mortgage secured over the title to the Street H, Suburb J property. At the time of re-finance, the balance due under the mortgage had increased to approximately $251,000. He borrowed the sum of $330,000, increasing the mortgage liability by approximately $79,000. Hence, upon that refinance, the mortgage liability over the Street H, Suburb J property had increased by approximately $168,000 since the parties’ separation. At the time of the sale of the property in 2016, the net increase of the mortgage liability by the husband was $158,000, the outstanding mortgage liability being approximately $320,000 upon settlement of the sale.
The husband was cross-examined as to how he had applied the monies drawn from the mortgage facility. His response to questions in relation to how those funds were expended was vague. He simply stated that he had debts to pay out and solicitor’s fees. The husband confirmed during his cross-examination that the wife was not consulted in relation to the re-finance of the mortgage liability. Again, he was dismissive of the wife, challenging her entitlement to such information as it was “[his] house and [his] mortgage”.
When questioned as to whether the funds advanced were applied towards his gambling, the husband conceded that he had problems with gambling, but qualified that response by noting that he had worked all of his life and that he had a good work ethic. When further challenged in relation to his gambling the husband conceded that he did have some difficulties with gambling.
The husband further acknowledged that at the time of the refinance, he was receiving rent from the Street S, Suburb T property of approximately $2,335 per month and that he was not servicing the mortgage secured over the Street H, Suburb J property. He confirmed that at the time he retained the whole of the rent received from the Street S, Suburb T property, he was not paying child support for the parties’ child.
The husband confirmed that he did not contribute to the support of the child, nor did he contribute to her school fees.
It was only when presented with documents produced under subpoena from agencies including FF Pty Ltd, B Pty Ltd and GG Pty Ltd that the husband conceded that he had a gambling problem. He acknowledged that the documents so produced indicated that there were hundreds and hundreds of pages recording his gambling at those agencies. He conceded that he had placed bets at a significant rate on a daily basis and that he was losing more money than winning. The husband agreed that he had spent thousands of dollars on betting. He also acknowledged that his gambling was still not under control.
Indeed, during the month-long period of the adjournment of the trial, when the husband allegedly was too unwell to attend Court, the documents produced under subpoena confirmed that the husband continued to gamble on a daily basis. The husband conceded during cross-examination that he had placed between 60 and 80 bets on 1 November 2017, the day following the adjournment of the hearing.
It was submitted on behalf of the wife that the husband had reduced the value of the parties’ asset pool in the post-separation period as a result of his gambling. As noted earlier, the mortgage liability in respect of the Street H, Suburb J property increased by approximately $158,000 in the post-separation period.
Having regard to the husband’s evidence, I am satisfied that those funds were retained by him; he has provided no evidence or explanation accounting for how those funds were applied. Given the husband’s concession that he has a gambling problem and expended significant sums gambling, I am satisfied that the parties’ asset pool has diminished as a result of the husband’s gambling, albeit I am not in a position to make a finding as to the amounts expended as a result of his gambling.
The issue of “waste” in family law property matters was considered by the Court in the case of Kowaliw & Kowaliw (1981) FLC 91-092. At page 76,644 Baker J discussed the question of “waste”, noting:-
As a statement of general principle, I am firmly of the view that financial losses incurred by parties or either of them in the course of a marriage whether such losses result from a joint or several liability, should be shared by them (although not necessarily equally) except in the following circumstances:
(a)Where one of the parties has embarked upon a course of conduct designed to reduce or minimise the effective value or worth of matrimonial assets, or
(b)Where one of the parties has acted recklessly, negligently or wantonly with matrimonial assets, the overall effect of which has reduced or minimised their value.
Conduct of the kind referred to para. (a) and (b) above having economic consequences is clearly in my view relevant under sec. 75(2)(o) to applications for settlement of property instituted under the provisions of sec. 79.

Further, Baker J reiterated his earlier comments by stating at page 76,644:-
If a party has acted in the manner to which I have referred earlier…then such conduct in my view and the economic consequences which flow therefrom are clearly matters to which the Court may have regard pursuant to the provisions of sec. 75(2)(o).
Having regard to the concessions made by the husband as to his gambling, coupled with his inability to explain or account for monies drawn by him from the mortgage account secured over the title to the Street H, Suburb J property, I am satisfied that the husband’s gambling losses are matters to be considered pursuant to s 90SF(3).

Care of the child

Since the parties’ separation, the wife has been solely responsible for the care of the parties’ child, X.
Since that time, the husband has spent little time with X. At the time of the trial, X had spent no time with the husband since about 2014. Further, she had not communicated with him by telephone since approximately November 2016.
The wife’s evidence is that in the years immediately following the parties’ separation, the husband spent intermittent periods of time with X. The husband was critical of the wife and sought to blame her for the breakdown in his relationship with X.
The wife’s evidence is that the husband’s contribution to X’s support has been sporadic and unpredictable. Since the time of separation, the husband has been assessed to pay child support in accordance with the Child Support Assessment Act 1989 (Cth). At the time of trial, the arrears accrued as a result of the assessments was $15,304.47.[5]
[5] Exhibit A-6.
The wife’s evidence, which I accept is that she has met X’s living expenses and school fees with little financial assistance from the husband. The wife deposes in her trial affidavit that she has engaged X in a range of extra-curricular activities, including sports and other hobbies. The wife has been solely responsible for meeting expenses associated with those activities.
In addition, the wife’s evidence is that she has met all of X’s health and medical expenses. She deposes that in 2010 X was diagnosed with coeliac disease. As a result, X is required to adhere to a strict gluten-free diet which substantially increases costs associated with her day-to-day living expenses.
The husband did not challenge the wife’s evidence in relation to arrears of child support or the expenses incurred by her in caring for X. Nonetheless he was critical of the wife and sought to blame her for his lack of involvement in X’s life since the parties’ separation. Notwithstanding those criticisms, the husband has made no application to this Court to spend time with the child since the parties’ separation in 2005.
Having regard to the evidence of the wife, I am satisfied that she has made a significant post-separation contribution to the welfare of the family by virtue of her primary responsibility for the care of the parties’ child, with little assistance from the husband.

Assessment

The parties shared a relationship of approximately eight years’ duration, albeit they cohabited for a period of only approximately two years. I am satisfied that each contributed to the best of their abilities during their relationship.
I am also satisfied that the initial contribution by the husband of his interest in the Street H, Suburb J property provided the parties with a springboard which enabled them to acquire the Street S, Suburb T property. The husband’s interest in the Street H, Suburb J property enabled the parties to secure borrowings to facilitate the purchase of the Street S, Suburb T property. It is unlikely the parties would have been able to acquire the Street S, Suburb T property without the husband’s interest in the Street H, Suburb J property. Having regard to those matters, I am satisfied there should be an adjustment in favour of the husband to recognise the impact of that contribution.
It was submitted on behalf of the wife that her post-separation contributions to the welfare of the family are significant and have the effect of off-setting the husband’s initial contributions.
I am satisfied that the wife has made significant contributions to the welfare of the family in the post-separation period by virtue of her care for the parties’ child. Those contributions have been made with only nominal assistance from the husband and have continued since the parties’ separation in 2005, a period of some fourteen years.
In addition to those contributions, the wife’s interest in the Street V, Town U property is a contribution made by her after the relationship had ended. The wife conceded that that interest should be included in the pool of assets available for division. That is a significant direct financial contribution by the wife.
Further, during the post-separation period, the husband has dissipated the parties’ equity in the Street H, Suburb J property due to his net drawing of approximately $158,000 on the mortgage facility. The husband has not accounted for those funds and has conceded that he has gambled heavily during that period.
Taking into account those matters, I am satisfied that the husband’s initial direct financial contributions have been largely off-set by the wife’s post-separation contributions. In all of the circumstances, I am satisfied that the parties’ contributions should be assessed as 58 per centum to the husband and 42 per centum to the wife.

Section 90SF(3) factors

The wife is aged 54 years and engaged in part-time employment.
The wife’s capacity for work has been affected by health issues. The wife relied upon the evidence of her general medical practitioner, Dr K. Dr K affirmed an affidavit filed on 4 October 2017 to which was annexed her report in relation to the wife dated 3 September 2017. Dr K in that report confirmed that she had treated the wife for a period of 22 years. Dr K confirmed that the wife suffers from a connective tissue disorder, hypertension, back pain and has a history of depression. At the time of the report, Dr K assessed the wife as being unfit for work due to those ailments. She opined that with the conclusion of the Family Court proceedings the wife would likely experience some improvement as she would be relieved from the stressors associated with these proceedings.
The husband cross-examined Dr K in relation to her evidence. However, there was no serious challenge to Dr K’s assessment or conclusions. I accept the evidence of Dr K as to the wife’s health.
The husband is aged 55 years and at the time of trial was unemployed.
The wife has been primarily responsible for the care of the parties’ child since the time of separation. As noted earlier, the husband has provided little support to the wife in her role as parent. At the time of hearing, there were in excess of $15,000 in arrears of child support. Whilst the husband has conceded that those arrears should be paid from the Street H, Suburb J property sale proceeds, having regard to the husband’s work history since the sale of the business in 2004, I am satisfied that the wife has little prospect of receiving meaningful financial assistance from the husband for the child’s care in the future.
Save for the parties’ child, neither party has responsibilities to support any other person.
As noted earlier, the losses incurred by the husband as a result of his gambling, which form part of the unaccounted for monies drawn by the husband from the mortgage secured over the Street H, Suburb J property, is a matter relevant pursuant to s 90SF(3)(r) of the Act.
I am satisfied, having regard to the above matters that the most significant matter to be taken into account pursuant to s 90SF(3) is the wife’s on-going responsibilities for the care, welfare and development of the parties’ child X, who is aged 16 years. I am satisfied that an adjustment of five per centum in favour of the wife is appropriate to take into account those matters. Based on a pool of $1,148,000, that is an adjustment of approximately $114,000 in favour of the wife.

Conclusion

Having regard to my findings pursuant to s 90SM(4) of the Act, I am satisfied that there should be a division of assets on the basis that the wife receives 47 per centum and the husband receives 53 per centum of the agreed asset pool.
Based on an agreed pool of $1,148,000, an adjustment of 47 per cent results in the wife being entitled to assets valued at approximately $539,560. An adjustment of 53 per cent in favour of the husband results in him having an entitlement to approximately $608,440.
During closing submissions, it was submitted on behalf of the wife that she sought a clean break from the husband. It was her position that notwithstanding her contention that she was entitled to a greater than 50 per centum adjustment of the pool, she sought orders that:-
·    Arrears of child support be paid from the proceeds of sale of the Street H, Suburb J property;
·    The balance of the sale proceeds be paid to the wife;
·    The wife retain the Street V, Town U property; and
·    The husband retain the Street H, Suburb J property.
The effect of an adjustment in those terms is to treat the child support liability as a joint liability. As such the pool is reduced to $1,133,019 and the wife will retain assets valued at $528,019 (approximately 46.6 per centum) and the husband will retain assets valued at $605,000 (approximately 53.4 per centum).
There is much force in the submission made on behalf of the wife as to the desirability for a clean break between the parties and end all disputes both in relation to property as well as outstanding child support arrears.
In the circumstances, and having regard to the concessions made by the husband that the arrears of child support be paid from the sale proceeds held on trust for the parties, I will make orders as sought by the wife.
Further, I will make orders requiring the wife to transfer to the husband her interest in the Street S, Suburb T property.
Having regard to all of the matters set out above, I consider the orders I make will be a just and equitable result as between the husband and the wife.

Costs

The wife seeks orders that the husband pay her costs thrown away on 31 October 2017 and 2 November 2017 as a result of his non-attendance at Court. Orders were made fixing and reserving the wife’s costs of those days. The total amount fixed and reserved for both days was $10,400. The husband conceded that costs in the sum of $5,400.00 should be paid to the wife by him in respect of 31 October 2017 but opposed her application in relation to the costs fixed in the sum of $5,000 for 2 November 2017.
In support of the wife’s application it was submitted that the husband had adduced no evidence to support his contention that he had an illness which would affect his capacity to attend Court. It was submitted that the non-attendance at Court on 31 October arose as a result of the husband’s difficulties when being cross-examined the preceding day; any stress that the husband suffered was as a result of that experience. It was further noted that following the husband’s attendance at hospital on 31 October he continued to gamble in the days following. Seemingly that activity was not impeded by any ill-health suffered by the husband.
In opposing the application, the husband submitted that he had told his former lawyer that he could not attend Court due to ill-health and as such should not be responsible for the wife’s costs of that day. He could point to no evidence to support his submission as to his inability to attend Court that day.
The question of costs is governed by s 117(1) of the Act which provides:-
Subject to sub-section (2), subsection 70NF(b)(1) and sections 117AA, 117AC and 118, each party to proceedings under this act shall bear his or her own costs.
That is, the general rule in proceedings under the Act is that subject to the provisions of s 117(2) of the Act, the parties to the proceedings shall bear their own costs of the proceedings.
Section 117(2) of the Act provides that if the Court is of the opinion that there are circumstances that justify it doing so, the Court may, subject to sub-sections (2A), (4), (4A) and (5) and the applicable Rules of Court, make such order as to costs and security for costs as the Court considers just.
Section 117(2A) of the Act provides that in determining what order (if any) should be made under sub-section (2) the Court must have regard to the following:-
(a)the financial circumstances of each of the parties to the proceedings;
(b)whether any party to the proceedings is in receipt of assistance by way of legal aid and, if so, the terms of the grant of that assistance to that party;
(c)the conduct of the parties to the proceedings in relation to the proceedings including, without limiting the generality of the foregoing, the conduct of the parties in relation to pleadings, particulars, discovery, inspection, directions to answer questions, admissions of facts, production of documents and similar matters;
(d)whether the proceedings were necessitated by the failure of a party to the proceedings to comply with previous orders of the court;
(e)whether any party to the proceedings has been wholly unsuccessful in the proceedings;
(f)whether either party to the proceedings has made an offer in writing to the other party to the proceedings to settle the proceedings and the terms of any such offer; and
(g)such other matters as the court considers relevant.
Costs are not awarded as punishment of the unsuccessful party, but rather are compensatory in the sense that they are awarded to ameliorate the expense of the successful party as a result of having been required to participate in the legal proceedings.
The discretion in s 117 of the Act is broad and the relevant factors in s 117(2A) are not to be read in a restrictive way; any one of those factors may found an order for costs but all factors must be taken into account and balanced (I and I (1995) FLC 92-625).
The Rules provide that the Court may make an order for costs on a number of different bases and Rule 19.18 sets out the method of calculation of costs, providing that:-
(1) In making an order under subrule (1), the court may consider:
(a)the importance, complexity or difficulty of the issues;
(b)the reasonableness of each party’s behaviour in the case;
(c)the rates ordinarily payable to lawyers in comparable cases;
(d)whether a lawyer’s conduct has been improper or unreasonable;
(e)the time properly spent on the case, or in complying with pre-action procedures; and
(f)expenses properly paid or payable.
The parties’ financial circumstances have been identified earlier in the judgment.
Neither party is in receipt of legal aid.
The husband’s failure to attend Court without notice or explanation is the most significant conduct matter in determining the costs issue. The husband adduced no evidence to support his contention that he was unable to attend Court due to illness. The only evidence produced on his behalf is a Medical Certificate and Discharge Summary dated 31 October 2017, both annexed to the affidavit of his former lawyer, Ms HH. The documents do not evidence an inability by the husband to attend Court on 2 November 2017.
In the circumstances, I am satisfied that the husband’s conduct in failing to attend Court on the adjourned date is a matter that justifies an order for costs. Accordingly, I will order that the husband pay the wife’s costs of 2 November 2017 fixed in the sum of $5,000.00.
The orders I will make, subject to submissions as to form are as follows:-
(1)That the applicant do all such acts and things and sign all such documents as may be required to transfer to the respondent at his expense all of her right, title and interest in the real property situate at and known as Street S, Suburb T in the State of Victoria.
(2)That contemporaneously with the transfer referred to in order (1) hereof, the respondent do all such acts and things as may be required to indemnify the applicant against all payments and liabilities pursuant to any mortgage, apportionable rates, notices, taxes and outgoings of or in relation to the Street S, Suburb T property.
(3)That the proceeds of sale of the property at Street H, Suburb J, held in trust for the parties by HH Lawyers be applied as follows:-
(a)First the sum of $15,304.47 be paid to the Commonwealth in relation to the respondent’s registrable maintenance liability pursuant to s 30 of the Child Support (Registration & Collection) Act 1988, relating to unpaid child support payable to the applicant;
(b)Second, the balance then remaining to the wife.
(4)That unless otherwise specified in these orders and save for the purposes of enforcing the payment of any money due under these or any subsequent orders:-
(a)Each party be solely entitled to the exclusion of the other to all property including choses-in-action in the possession of such party as at the date of these orders;
(b)Any money standing to the credit of the parties in a bank account are to be retained by the party in whose name the account appears;
(c)Each party forgoes any claim they may have to any superannuation benefit that is belonging to or owned by the other;
(d)All insurance policies are to become the sole property of the owner named thereon; and
(e)Any joint tenancy of the parties in any real or personal estate is hereby expressly severed.
(5)That the husband pay the wife’s costs as follows:-
(a)The sum of $5,400.00 in respect of the wife’s costs of 31 October 2017; and
(b)The sum of $5,000.00 in respect of the wife’s costs of 2 November 2017.
(6)That all extant applications be otherwise dismissed.
IT IS DIRECTED
(7)That all documents produced to the Court pursuant to subpoena and exhibits relied upon by the parties be returned by the subpoena clerk of the Family Court of Australia, Melbourne Registry, to the person or organisation who produced same after the expiration of thirty (30) days from the date of these orders, or otherwise upon the conclusion of any appeal.

I certify that the preceding two hundred and thirteen (213) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Johns delivered on 25 November 2019.

Associate:

Date: 25 November 2019

[2019] FamCA 874

25 November 2019

Key Legal Topics

Areas of Law

Family Law

Statutory Interpretation

Legal Concepts

Jurisdiction

Statutory Construction

Costs

Remedies