Liddle and Liddle

[2017] FCCA 1122

FEDERAL CIRCUIT COURT OF AUSTRALIA

LIDDLE & LIDDLE [2017] FCCA 1122

Catchwords:
FAMILY LAW – Undefended property – where the Respondent Husband’s financial affairs under administration – where the Respondent Husband has disappeared but where there is no presumption of death – assessment of contribution and future needs – a just and equitable order.

Legislation:

Family Law Act 1975, ss.75, 79

Family Law (Superannuation) Regulations 2001

Cases cited:

Bevan & Bevan [2013] FamCAFC 116

Hickey & Hickey & Attorney General for the Commonwealth of Australia [2003] FamCA395
Stanford & Stanford [2012] HCA 52
Vass & Vass [2015] FamCAFC 51

Applicant: MS LIDDLE

Respondent: MR LIDDLE

File Number: WOC 843 of 2016

Judgment of: Judge Altobelli

Hearing date: 2 May 2017

Date of Last Submission: 2 May 2017

Delivered at: Wollongong

Delivered on: 9 June 2017

REPRESENTATION

Solicitors for the Applicant: Sydney Family Law Specialists

There was no appearance by or on behalf of the Respondent.

ORDERS

1. Pursuant to Rule 1.06 of the Federal Circuit Court Rules 2001, the Court dispenses with compliance with these Rules.

2. Liberty is granted to the Applicant to re-list the matter within 14 days of the publication of Reasons for Judgment in this matter by application to the Court in Chambers in relation to the super splitting order payable by her to the Respondent.

3. The orders that follows are stayed for a period of 14 days in order to facilitate Order (2) above. Should the matter not be so relisted these Orders become unconditional in 14 days.

4. The Registrar of the Court pursuant to s106A of the Act shall execute a signed Transfer of the Property R and all other documents necessary to enable the Husband’s whole title and interest in the Property R property to be transferred to the Wife and/or her nominee, including doing all things and acts (not to include payment of money) and signing all documents necessary to enable the caveat bearing dealing number (omitted) to be removed from the title of the Property R at or before the transfer of the Property R property to the Wife and/or her nominee.

5. Within two (2) years of the making of these Orders the Wife shall do all things and acts and sign all documents necessary to discharge the Property R mortgage and/or refinance same into her sole name and/or her nominee. At the same time as discharging the said mortgage or refinancing the same into her sole name, the Wife shall pay to the Husband (or his financial guardian or administrator) the sum of $36,944.

6. Pending the transfer of the Property R property to the Wife and/or her nominee in accordance with these orders the Husband is restrained by injunction from:

   (a)Encumbering, assigning, transferring or dealing with, in any manner, the Property R property other than as required to give effect to these Orders; and

   (b)Drawing upon, increasing or otherwise dealing with or affecting the Property R mortgage other than as required to give effect to these Orders.

7. For the purpose of Orders 4, 5, and 6 the requirement for the Husband’s consent and/or signature be dispensed with.

8. The Wife shall forthwith be entitled to exclusive occupation of the Property R property to the exclusion of the Husband.

9. In the event the Wife elects to sell the Property R then the Wife shall be appointed sole trustee of the sale.

10. Upon completion of the sale of the Property R property (if required pursuant to these Orders), the proceeds of sale shall be disbursed as follows:

    (a)To pay all costs, commissions and expenses of the sale and to pay any council and water rates and maintenance levies outstanding in respect of the Property R property; then

    (b)In payment of an amount sufficient to discharge the Property R mortgage; then

    (c)In payment of $36,944 to the Husband or his financial guardian or administrator at the time.

    (d)In payment of the balance then remaining to the Wife.

11. In accordance with section 90MT(1)(a) of the Family Law Act whenever a splittable payment within the meaning of section 90ME of the Family Law Act becomes payable to or on behalf of Ms Liddle, born (omitted) 1962, from her interest in (omitted) Super member number (omitted), Mr Liddle, born (omitted) 1960 is entitled to be paid (by the Trustee of (omitted) Super), the amount calculated in accordance with Part 6 of the Family Law (Superannuation) Regulations 2001, using a base amount of $100,000 and there is to be a corresponding reduction in the entitlement Ms Liddle would have had but for these Orders.

12. The operative time for the purposes of Order 11 shall be calculated from four (4) business days after the date that a sealed copy of these Orders is served upon the trustee of (omitted) Super.

13. Having been accorded procedural fairness, these Orders bind the trustee of (omitted) Super to observe the requirements of the Family Law Act and the Family Law (Superannuation) Regulations 2001.

14. In the event that the superannuation split to Mr Liddle pursuant to Order 11 can be rolled over into a separate account to that of Ms Liddle, then Ms Liddle shall do all such acts and things and execute all such documents as may be necessary to facilitate and implement that rollover and that the requirement for Mr Liddle’s consent and/or signature be dispensed with.

15. Unless otherwise specified in these Orders, as against the Husband, the Wife be solely entitled to retain and the Husband has no interest in:

    (a)The Property R property;

    (b)The Wife’s superannuation;

    (c)The Wife’s motor vehicle;

    (d)The Wife’s bank accounts; and

    (e)The Wife’s personal belongings.

16. Unless otherwise specified in these Orders, as against the Wife, the Husband be solely entitled to retain and the Wife has no interest in:

    (a)The Husband’s motor vehicle;

    (b)The Husband’s superannuation;

    (c)The Husband’s bank accounts; and

    (d)The Husband’s personal belongings.

17. Unless otherwise specified in these Orders, the Wife be solely responsible for and indemnifies the Husband in relation to the Wife’s liabilities.

18. Unless otherwise specified in these Orders, the Husband be solely responsible for and indemnifies the Wife in relation to the Husband’s liabilities.

19. Unless otherwise specified in these Orders:

    (a)The Husband and Wife each be solely entitled to the exclusion of the other to all other property and chattels of whatsoever nature and kind in the possession of such party as at the date of these Orders and that for this purpose bank accounts are deemed to be in the possession of the person whose name appears on the banks’ records thereof and superannuation entitlements are deemed to be in the possession of the person who is named as the worker whose age or working future provides the conditions for payment of such entitlements;

    (b)The Husband and Wife each be solely liable for and indemnify the other against any liability encumbering any item of property to which that party is entitled pursuant to these Orders; and

    (c)The Husband and Wife each be liable for and indemnify the other against any liability in their respective sole names, including but not limited to credit cards and personal loans.  

20. The Husband and Wife shall each do all such things as are necessary and sign all such documents as are necessary to give effect to these Orders.

21. The Husband and Wife each have liberty to apply in relation to the implementation of these Orders.

22. Pursuant to section 81 of the Act the Husband and Wife intend that these Orders shall finally determine their financial relationship and avoid further proceedings between them.

23. In the event either party refuses or neglects to execute any deed, document or instrument necessary to give effect to all or any of these Orders then the Registrar of the Court shall be appointed pursuant to section 106A of the Family Law Act to execute such deed, document or instrument in the name of the said party and to do all acts and things necessary to give validity and operation to the deed, document or instrument upon the Registrar being provided with verification of such refusal or failure by way of Affidavit.

THE COURT NOTES THAT:

A.The following definitions for the purposes of these Orders:

(a)“Act” means the Family Law Act1975 (Cth);

(b)“Wife” means Ms Liddle, born (omitted) 1962;

(c)“Husband” means Mr Liddle, born (omitted) 1960;

(d)“Property R property” means the property situated at and known as Property R in the State of New South Wales more particularly described as folio identifier (omitted) and registered in the Husband and Wife’s joint names.

(e)“Property R mortgages” means the mortgage/s to the Perpetual Trustee Company Limited and registered upon the Property R property in the Husband and Wife’ joint names.

(f)“Wife’s motor vehicle” means the Hyundai (omitted) motor vehicle registered in the Wife’s sole name with registration number “(omitted)”;

(g)“Husband’s motor vehicles” means any motor vehicle registered in the sole name of the Husband;

(h)“Wife’s superannuation entitlements” means the Wife’s interest in (omitted) Super and/or any other superannuation fund;

(i)“Husband’s superannuation entitlements” means the Husband’s interest in any superannuation fund;

(j)“Wife’s bank accounts” means all bank accounts in the Wife’s name;

(k)“Husband’s bank accounts” means all bank accounts in the Husband’s name;

(l)“Wife’s personal belongings” means all personal belongings in the possession of the Wife;

(m)“Husband’s personal belongings” means all personal belongings in the possession of the Husband;

(n)“Wife’s liabilities” means all liabilities in the Wife’s name, including but not limited to credit card liabilities and personal loan; and

(o)“Husband’s liabilities” means all liabilities in the Husband’s name, including but not limited to his credit card liabilities and personal loans.

IT IS NOTED that publication of this judgment under the pseudonym Liddle & Liddle is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT WOLLONGONG

WOC 843 of 2016

MS LIDDLE

Applicant

And

MR LIDDLE

Respondent

REASONS FOR JUDGMENT

Introduction

1. These reasons for judgment explain the Orders made in an undefended property settlement between the parties.  The Applicant is the Wife.  She is 54 years old.  The Respondent is the Husband.  He is 56 years old.  They commenced a relationship in 1981, married in 1985, and separated in 2009.  They have two adult children.  In January 2016 the Respondent Husband disappeared from his room at the (omitted) Hospital and has been listed as a missing person since then.  The Public Trustee of Queensland has been appointed as administrator for the Husband in relation to all financial affairs.  That was pursuant to a decision made 5 November 2014 in the Queensland Civil and Administrative Tribunal.

Background

1. Both parties were born in Australia.  When they commenced cohabitation in 1981 neither had any significant assets or liabilities.  In 1984 they purchased vacant land in Property R using joint savings.  In 1987 they commenced building on the property and by late that year they had moved in.  They owed about $60,000 on a mortgage that was used to finance the construction of the home on the property.

2. In 1988 the Husband received an inheritance of about $48,000, and this was applied to the mortgage.  In 1989 the Husband, who was a (occupation omitted) by trade, purchased a (omitted) business.  The parties borrowed $50,000 to fund this purchase, and this business loan was then consolidated with what was left of the mortgage loan over the Property R property.  The (omitted) business was not a great success and the impression formed from the evidence is that it barely covered their living expenses, and in fact probably led the parties to incur further debt secured on their mortgage.

3. In 2004 the parties borrowed an additional $100,000 and the Husband used this to purchase a (omitted) business in (omitted).  The Wife asserts that this was without her knowledge or consent.  This business also did not appear to be very successful.  In 2007 the parties had to, once again, refinance the Property R mortgage to consolidate their debts.  By 2009, when the parties had separated, the amount secured by the Property R mortgage was $232,987.

4. On separation the Wife and children remained in the former matrimonial home at Property R.  The Husband continued to operate the (omitted) business until 2013 when, it seems, the business closed.  From 2011 the Wife became solely responsible for paying the mortgage and, indeed, it seems as if during the post-separation period many of her husband’s creditors pursued her.

5. Certainly as at 2009, but probably before then, there is evidence to suggest that the Husband was drinking alcohol to excess and it was becoming increasingly problematic for him.

6. What is presently known about the Husband is based on what little the Wife knows, and documents that have been produced by the Public Trustee of Queensland.  In August 2014 an involuntary treatment order was made against the Husband pursuant to the Mental Health Act 2000 (Qld). He became an inpatient at a mental health facility. The documents record that he was homeless at the time, was experiencing persecutory delusional thoughts which impaired his function, was at risk of being aggressive and a further decline in his physical and mental state, lacked capacity to consent to anything and was not able to be managed in the community. He had previously presented with psychotic symptoms. A mental health occupational therapy assessment that was conducted in September 2014 found the Husband to have been living on the streets in Brisbane “over the last few years”. He was in institutional care until early 2016. When he left the facility he was in and he has, for all practical purposes, disappeared despite extensive efforts to locate him. There is no evidence to suggest that the Husband is dead. The solicitor for the Wife informed the Court that, in the circumstances, no presumption of death could apply for a period of seven years from when he was last seen or heard of. The material presented before the Court indicates that he continues to receive Centrelink benefits which have been banked on his behalf by the Public Trustee of Queensland but have not, apparently, been accessed by him.

The Orders Sought by the Wife 

1. The Wife sought an order that the Property R property be transferred to her and that she do all acts and things necessary to discharge the mortgage over the property within two years of making these orders. In the meanwhile she would be responsible for all outgoings on the property, and would be restrained from further encumbering the property. She would, of course, and consistently with the recent history in this matter, be entitled to exclusive occupation of the property. She would be free to sell the property, on the basis that the mortgage is paid, and she would receive the remaining sale proceeds. She proposed a superannuation split out of her superannuation entitlement in favour of the Husband in the sum of $61,000. The Wife’s case was based on an assessment of contribution in her favour as to 60 per cent at the date of separation, increasing to 75 per cent as at the date of trial having regard to her post-separation contributions. She further argued that there should be a 7.5 per cent adjustment in her favour under s.75(2) of the Family Law Act 1975 (‘the Act’), resulting in an overall settlement of 82.5 per cent.

2. There was no proposal, of course, on behalf of the Respondent Husband.  The matter proceeded on an undefended basis.  The Court was satisfied that, in the circumstances, all that could be done to notify the Husband of these proceedings was done, by communicating with the Public Trustee.  The Public Trustee produced documents on subpoena, which were then tendered to the Court.  To the extent that service needs to be dispensed with, in the unique circumstances of this case such an order is appropriate.

The Evidence before the Court 

1. The Wife relied upon the following material:

   a)Amended Initiating Application, filed 18 April 2017;

   b)Amended Affidavit of the Wife, filed 18 April 2017;

   c)Amended Financial Statement of the Wife, filed 18 April 2017 and

   d)Affidavit of Ms R, filed 27 April 2017.

2. The following material was tendered:

   a)Letter from the Applicant solicitor to the Public Trustee of Queensland dated 27 April 2017;

   b)Email from the Public Trustee of Queensland to the Applicant solicitor dated 18 April 2017; and

   c)Subpoena material produced by the Public Trustee of Queensland.

Applicable Law

1. This is an application under s.79 of the Family Law Act 1975 which relevantly provides:

   Alteration of property interests

   (1)  In property settlement proceedings, 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 marriage or either of them--altering the interests of the parties to the marriage 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 marriage--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 marriage; or

   (ii)  the relevant bankruptcy trustee (if any);

   to make, for the benefit of either or both of the parties to the marriage or a child of the marriage, such settlement or transfer of property as the court determines.

   (2)    The court shall not make an order under this section unless it is satisfied that, in all the circumstances, it is just and equitable to make the order.

   (4)    In considering what order (if any) should be made under this section in property settlement proceedings, the court shall take into account:

   (a)  the financial contribution made directly or indirectly by or on behalf of a party to the marriage or a child of the marriage to the acquisition, conservation or improvement of any of the property of the parties to the marriage or either of them, or otherwise in relation to any of that last-mentioned property, whether or not that last-mentioned property has, since the making of the contribution, ceased to be the property of the parties to the marriage or either of them; and

   (b)  the contribution (other than a financial contribution) made directly or indirectly by or on behalf of a party to the marriage or a child of the marriage to the acquisition, conservation or improvement of any of the property of the parties to the marriage or either of them, or otherwise in relation to any of that last-mentioned property, whether or not that last-mentioned property has, since the making of the contribution, ceased to be the property of the parties to the marriage or either of them; and

   (c)  the contribution made by a party to the marriage to the welfare of the family constituted by the parties to the marriage and any children of the marriage, including any contribution made in the capacity of homemaker or parent; and

   (d)  the effect of any proposed order upon the earning capacity of either party to the marriage; and

   (e)  the matters referred to in subsection 75(2) so far as they are relevant; and

   (f)  any other order made under this Act affecting a party to the marriage or a child of the marriage; and

   (g) any child support under the Child Support (Assessment) Act 1989 that a party to the marriage has provided, is to provide, or might be liable to provide in the future, for a child of the marriage.

1. Section 79(4) incorporates the provisions contained in s.75(2) of the Act, which states:

   (2)  The matters to be so taken into account are:

   (a)  the age and state of health of each of the parties; and

   (b)  the income, property and financial resources of each of the parties and the physical and mental capacity of each of them for appropriate gainful employment; and

   (c)  whether either party has the care or control of a child of the marriage who has not attained the age of 18 years; and

   (d)  commitments of each of the parties that are necessary to enable the party to support:

   (i)  himself or herself; and

   (ii)  a child or another person that the party has a duty to maintain; and

   (e)  the responsibilities of either party to support any other person; and

   (f)  subject to subsection (3), the eligibility of either party for a pension, allowance or benefit under:

   (i)  any law of the Commonwealth, of a State or Territory or of another country; or

   (ii)  any superannuation fund or scheme, whether the fund or scheme was established, or operates, within or outside Australia;

   and the rate of any such pension, allowance or benefit being paid to either party; and

   (g)  where the parties have separated or divorced, a standard of living that in all the circumstances is reasonable; and

   (h)  the extent to which the payment of maintenance to the party whose maintenance is under consideration would increase the earning capacity of that party by enabling that party to undertake a course of education or training or to establish himself or herself in a business or otherwise to obtain an adequate income; and

   (ha)  the effect of any proposed order on the ability of a creditor of a party to recover the creditor's debt, so far as that effect is relevant; and

   (j)  the extent to which the party whose maintenance is under consideration has contributed to the income, earning capacity, property and financial resources of the other party; and

   (k)  the duration of the marriage and the extent to which it has affected the earning capacity of the party whose maintenance is under consideration; and

   (l)  the need to protect a party who wishes to continue that party's role as a parent; and

   (m)  if either party is cohabiting with another person--the financial circumstances relating to the cohabitation; and

   (n)  the terms of any order made or proposed to be made under section 79 in relation to:

   (i)  the property of the parties; or

   (ii)  vested bankruptcy property in relation to a bankrupt party; and

   (naa)  the terms of any order or declaration made, or proposed to be made, under Part VIIIAB in relation to:

   (i)  a party to the marriage; or

   (ii)  a person who is a party to a de facto relationship with a party to the marriage; or

   (iii)  the property of a person covered by subparagraph (i) and of a person covered by subparagraph (ii), or of either of them; or

   (iv)  vested bankruptcy property in relation to a person covered by subparagraph (i) or (ii); and

   (na) any child support under the Child Support (Assessment) Act 1989 that a party to the marriage has provided, is to provide, or might be liable to provide in the future, for a child of the marriage; and

   (o)  any fact or circumstance which, in the opinion of the court, the justice of the case requires to be taken into account; and

   (p)   the terms of any financial agreement that is binding on the parties to the marriage; and

   (q)  the terms of any Part VIIIAB financial agreement that is binding on a party to the marriage.

2. In Bevan & Bevan [2013] FamCAFC 116, the Full Court of the Family Court of Australia considered the High Court’s decision in Stanford & Stanford [2012] HCA 52, which provided guidance on how s.79 was to be interpreted and implemented. Bevan endorsed the continuing application of the four-step approach articulated by the Full Court in Hickey & Hickey & Attorney General for the Commonwealth of Australia [2003] FamCA395, but on the basis that it is a shorthand distillation of the words of s.79, as opposed to being a statutory edict. The four steps articulated in Hickey at paragraph 39 are:

   a)Identify and value the property, liabilities and financial resources of the parties; and

   b)Identify and assess the contributions of the parties and express them as a percentage of the net value of the property; and

   c)Identify and assess the other facts relevant under s.79(4)(d)-(g) including s.75(2) and determine the adjustment (if any) to be made to the contribution entitlements at step two; and

   d)Consider the effect of the above and resolve what order is just and equitable in all the circumstances.

3. The decisions in Stanford and Bevan also emphasise the importance of making findings that any order is just and equitable for the purposes of s.79(2), independent of the s.79(4) process. In most cases, such as the present one, it makes no difference to the outcome of the alteration of property interests exercise. Even if the just and equitable consideration were treated as a threshold issue in this case the parties have, by their actions (separation, and re-ordering of their financial lives since then), and claims (divergent claims about their property under s.79 of the Act), indicated that they themselves consider it just and equitable that some order be made under s.79 adjusting their property interests as presently held. It is clearly just and equitable in this case to make an order.

4. Both decisions also emphasise the importance of identifying, according to ordinary common law and equitable principles, the existing legal and equitable interests of the parties in the property.  This is not inconsistent with step one in Hickey. 

The Balance Sheet

1. In the Applicant Wife’s solicitor’s case outline the balance sheet contended on her behalf was as follows: 

Ownership			Description	Wife’s value	Husband’s value
ASSETS
1	Joint		Property R	$540,000	$580,000
2     0	Joint		Contents	$10,000	NK
3	H		Cash in bank	$24,251	$24,251
4	H		Shares	$2,047	$2,047
5	W		Hyundai (omitted)	$6,000	NK
6	W		Cash in bank	$23,168	NK
Total Assets			E$605,466	$NK
LIABILITIES
7	Joint		Property R mortgage	E$80,092	NK
8	Joint		Property R mortgage	E$121,246	NK
9	W		(omitted) Personal Loan	E$16,750	NK
10	W		(omitted) Visa Credit Card	E$5,000	NK
11	W		Toyota Finance – Secured Car Loan	E$1,599	NK
Total Liabilities			E$224,687	$NK
NETT TOTAL ASSETS
SUPERANNUATION
Member		Name of Fund		Wife’s Value	Husband’s Value
12	H	Not Known		NK	NK
13	W	(omitted) Super		E$123,362	NK
Total		E$123,362	$NK

1. In the documents produced by the Public Trustee of Queensland, the official solicitor to the Public Trustee prepared a balance sheet contended on its behalf.  The differences in these documents need to be explored.

2. The Wife values the Property R property at $540,000 based on market appraisals obtained by her from a local real estate agent in April 2017.  The Public Trustee values the Property R property at $580,000 based on a valuation obtained on 6 November 2015.  The evidence relied on by the Wife is not expert evidence, but is at least current.  The valuation obtained by the official solicitor to the Public Trustee of Queensland is expert evidence, but is 18 months old.  In the circumstances, and despite its comparative antiquity, the Court prefers the evidence in the form of the valuation produced by a registered Valuer.  The value of the Property R property will, therefore, be $580,000.

3. It seems agreed that the value of the contents of the home is $10,000.  There seems to be agreement that the Husband’s cash at bank is $24,251.  The value of his shares is agreed.  There is a slight discrepancy in the value of the Wife's Hyundai (omitted) motor vehicle.  In the absence of any expert evidence, the Wife’s value of $6000 will be adopted as an admission against interest.  The Wife asserts that she has cash at bank in the sum of $23,168.  On behalf of the Trustee a higher figure was asserted, but the basis of this is not established.  Accordingly, the Wife’s figure will be adopted as an admission against interest.

4. The liability on the Property R mortgage propounded by the Wife is less than that propounded by the Public Trustee.  In the circumstances, her figure will be adopted. 

5. There are a number of other personal liabilities of the Wife that do not appear to be in contention.  The figure advanced by the Wife as being the value of her superannuation is greater than that suggested by the Public Trustee, and so her figure will be adopted. 

6. There are no other issues relating to the balance sheet.  Accordingly, the balance sheet for present purposes will be:

Description	Value
Property R	$580,000
Contents	$10,000
Husband’s Cash in bank	$24,251
Shares	$2,047
Hyundai (omitted)	$6,000
Wife’s Cash in bank	$23,168
TOTAL:	$645,466
Property R mortgage	E$80,092
Property R mortgage	E$121,246
(omitted) Personal Loan	E$16,750
(omitted) Visa Credit Card	E$5,000
Toyota Finance – Secured Car Loan	E$1,599
TOTAL:	E$224,687
(omitted) Super	$123,362
TOTAL:	123,362

1. This means that the net asset pool has a value of $420,779.  In addition, the Wife’s superannuation has a value of $123,362.  The total net pool of assets, including superannuation, amounts to $544,141.

Assessment of Contribution 

1. The Wife’s case that the parties commenced their relationship with minimal assets is plausible.  She asserts, however, that as at the date of separation her contribution should be assessed at 60 per cent.  The basis of this is unclear, and is in any event unsupported by the evidence before the Court.  Their contribution in an individual sense was different.  Thus, for example, the Husband primarily worked outside of the home.  Whilst the Wife worked from time to time outside of the home, she was primarily a homemaker and parent in this relationship.  Whilst they did different things, there is no reason to place greater worth on either type of contribution.  The Husband conducted two businesses, neither of which appear to have been successful and which ultimately increased the parties’ debt.  That is not a basis for reducing the contribution that the Husband otherwise made.  The Court assesses contribution as at the date of separation to be equal.

2. The focus turns to the post-separation period, a period of over seven years.  The Wife deposes that the Husband left the home in 2009.  She remained there with the children who at that stage were both adults.  She assumed responsibility for the maintenance and upkeep of the property but she concedes in her evidence that the Husband continued to pay the mortgage until 2011.  From that time onwards, however, the Wife assumed the sole responsibility for serving not just the mortgage on the home but the business loan in relation to the Husband’s (omitted) business which was ultimately closed in 2013.

3. The Wife gives evidence that in the post-separation period she often received telephone calls, and unexpected visits from the Husband.  He made threatening comments and was observed to be under the influence of alcohol.  Indeed, it became necessary for her to obtain an Apprehended Violence Order.  The difficulty was the Husband could not be located.

4. It is certainly the case that from 2011 the Wife was solely responsible for all the mortgage payments, all outgoings on the property, and assumed sole responsibility for preserving the asset in question.  This has been at considerable cost to her but, of course, she has also been able to enjoy the exclusive occupation of the property.  Nonetheless, the Court accepts that the Wife made a significant contribution in this post-separation period.  But for her efforts to preserve the property it would have almost certainly been lost.  The Court therefore accepts the solicitor for the Wife’s submission that in respect of the post-separation period there should be a further adjustment in the Wife’s favour as to 15 per cent.

5. Accordingly, the Court assesses contribution as at the date of trial to be 65 per cent in the Wife’s favour.

An adjustment under section 75(2)? 

1. The Wife contends that there should be a further adjustment in her favour as to 7.5 per cent.

2. The precise basis of the adjustment in the Wife’s favour is somewhat unclear. The difficulty in this case, of course, is that the Husband has disappeared, and what is known about his health is, therefore, somewhat dated. His health could have improved, but of course it could have deteriorated. It is possible that the Husband is dead, in which case he would have no s.75(2) factors operating in his favour, but the Court cannot make this presumption. Indeed, the Court will simply have to assume that he is alive, and work off what evidence is before it.

3. The Wife agrees that she is in good health.  She is 54 years old.  What is known from the documents produced by the Public Trustee of Queensland is that the Husband has both mental health and physical issues.  The fact that the Husband was institutionalised at the time that he disappeared leads the Court to infer that his health condition was such that it was unlikely to improve and that he would be dependent on others to look after him.

4. The Wife was working full-time until June last year when she became redundant.  She received a redundancy payment which has been spent on living expenses, including paying the mortgage.  Her Amended Financial Statement of 18 April 2017 discloses that she is now employed as an (occupation omitted) with a (employer omitted) and earns $1,200 per week.  The Court accepts that this does not meet her reasonable living expenses, principally due to the amount she pays each week on the mortgage loans secured over the property.  Given that the Wife agrees that she is in good health, there is no suggestion that she will not be able to work into the future.  Even though her current work is on a casual basis, she herself deposes that she is working 40 hours each week.  By contrast it is reasonable to assume that the Husband has no capacity for employment and the evidence suggests that he is entirely Centrelink-dependent.

5. Whilst neither party has an obligation to care for a child of the marriage under the age of 18, the Wife deposes to being responsible for the care of her youngest son Mr D, who has struggled with ice use and has been in jail. She deposes to wanting to support him through rehabilitation, as well as the provision of accommodation. Given that Mr D was the son of both parties, the Court is prepared to take this into account under s.75(2)(o) of the Act. It is also a relevant factor under s.75(2)(e).

6. The Husband is in receipt of a Centrelink benefit which, it seems, he is not collecting.  If he is alive, a reasonable assumption is that he would be entitled to continue to receive such benefits.  The Wife does not have an entitlement to Centrelink benefits.  She does have superannuation, of course.  It is unknown whether the Husband has superannuation, despite the solicitor for the Wife’s inquiries.

7. There are no issues of standard of living that are relevant in this case.  The Wife has not re-partnered.  The property order that is proposed, assessed purely on the basis of contribution, will see the Wife receiving 65 per cent of the asset pool.  This leaves the Husband with less, of course, though the Wife’s submission is that he needs less and what needs he has are provided institutionally.

8. With great respect to the Wife and those advising her, it is very hard, indeed impossible, to discern how on the facts of this case there should be a s.75(2) adjustment in the Wife’s favour, other than in modest terms. The Court’s obligation to do justice and equity under s.79, and to make an order under s.75 as it considers proper, is an obligation that applies in undefended proceedings just as much as it would in fully contested proceedings. All that could be said in this case, at its very highest, is that the Husband could be dead and therefore has no s. 75(2) factors operating in his favour. That is not a finding the Court can make, though it takes account of that possibility in a general sense, in awarding the Wife 5 per cent under s.75(2).

A Just and Equitable Order 

1. The Wife’s contribution is assessed at 65 per cent, and her future needs at 5 per cent, meaning that she would be entitled to 70 per cent of the assets available to the parties.  The Court believes that in the rather unusual circumstances of this case that is as just and equitable an outcome as is possible.  Clearly, the Wife seeks a result that enables her to retain the former matrimonial home at Property R on the basis that she continues to service the loan and eventually discharges it.  That is understandable, in the circumstances.  The desired outcome, however, cannot drive the statutory process of assessing contributions and future needs.

2. On the assumption that the Wife retains the Property R property valued at $580,000, her superannuation, the other assets in her name, but keeps the liabilities referred to in the balance sheet, her net asset position would be $517,843.  Her entitlement of 70 per cent, however, means she should get $380,899, rounded off.  This would mean a payment to the Husband of $136,944.  Conversely, the Husband’s 30 per cent share is $163,242.  When the cash that he has and the shares is taken into account this brings his entitlement down to $136,944.  That is the difference payable to him by the Wife.

3. The Wife proposed to super split in the Husband’s favour as to $61,000.  Of course, she did so assuming that the assessment of contribution and future needs would be much greater in her favour.  The Court must make a just and equitable order.  Given the Husband’s age, and the known state of his health, maximising his entitlement in the form of superannuation is no disadvantage to him but it has the benefit of providing to the Wife the former matrimonial home.  Accordingly, and in the unusual circumstances of this case, the Court is prepared to make a splitting order in favour of the Husband in excess of that which was proposed by the Wife, but to give her the opportunity to relist the matter before the Court within 14 days of the publication of these reasons for judgment should the approach adopted by the Court produce an unintended consequence.  Thus, instead of the proposed $61,000 the Court will order a super split in the sum of $100,000 which brings down the cash component of the order to $36,944.

4. Again, in the unique circumstances of this case, there is detriment and hardship to the Wife if such amount were ordered to be paid immediately.  Indeed, postponing payment not only averts that hardship to her, but is not to the Husband’s prejudice or disadvantage.  Accordingly, the payment to the Husband of $36,944 will be postponed by two years, to coincide with the discharge of the Property R mortgage.

5. The Husband’s payment, of course, would be paid to the Public Trustee of Queensland.

I certify that the preceding forty-two (42) paragraphs are a true copy of the reasons for judgment of Judge Altobelli

Date:  9 June 2017